Colorado Confluence

On a Facebook post extolling the virtues of vegetarianism, a fellow named Bryan made the following comment:

Viewing human dentition, arrived at after about 7 million years of evolution (based on the new fossil finds last year), it would appear that meats were always part of the Almighty’s diet plan for our species. The veggie-only folk are certainly entitled to their opinion about how to feed THEMSELVES, but their argument that it is the preferred method for the species is both inaccurate and self-serving.

My response:

Bryan, we evolved as animals adapted to the African savanna, following the logic of evolution, which is that those genetic variations which continually reproduce successfully are perpetuated into the future. One of the products of that process was the human brain, mostly evolved to manipulate the complex small muscles of our fingers, but incidentally facilitating the development of language, which set into motion a similar evolutionary process: Those cognitive variations which continually reproduce successfully are perpetuated into the future.

In other words, we are not just anatomical beings, but also conscious beings. Citing our anatomy as though we are under some obligation to choose behaviors and customs suggested by it sounds reasonable to people who aren’t, because we defy our anatomy all the time, and to marvelous effect. We train some among us to perform complex surgical procedures, or apply other medical treatments, to combat perfectly natural deadly or debilitating diseases or conditions. We invent instruments to enable us to do things that our anatomy does not enable us to do.

Our craving for fat and sugar is probably due to the combination of our need for some small amount of both and their relative scarcity or difficulty of obtaining in the African savanna, such that our primal predecessors could never get too much of either. Should we abide by that anatomical dictate, and eat as much fat and sugar as we are anatomically predisposed to desire?

No, of course not. Anatomy is what formed us; consciousness is what guides us. The latter does not have to acquiesce to the former in ways that the latter discovers to be dysfunctional or otherwise undesirable.

Having said all that, I don’t tend toward high-minded moralism, and don’t seek some morally perfect universe. If I did, I would probably be adamantly opposed to the consumption of meat. There are many reasons why, as conscious beings, that is a sensible position. The healthiest of all diets, if one is careful about satisfying all nutritional requirements, is one without meat. Food production maximization per acre of land excludes raising animals for meat (which is a nutritionally inefficient use of land). The slaughter of animals that feel fear and pain to satisfy a mere desire of our own should give us pause. It’s really a very reasonable position. And we are capable of reason, regardless of how our teeth are shaped.

By the way, I eat meat.

This isn’t the kind of thing that I would usually reproduce here as a post, except that there’s something about it that strikes me as getting to the crux of the matter (“the matter” being the continuing development and implementation of human consciousness, in all matters): We need to be careful to distinguish reason from rationalization. And the way to do that is, like the delightfully relentless child, to keep on asking “why?”

Bryan cited human dentation as proof that we are “meant” to eat meat. Why? What does it mean that “we are meant to” do or be something in particular? Who meant it? (Bryan, apparently, would answer “the almighty.”) Why do we have to acquiesce to what that real or imagined “meaner” meant for us? How does it stack up against what we, individually or collectively, “mean” for us to do here and now? Are our concerns for optimal use of available land, compassion for creatures that feel fear and pain, and human health all irrelevant if someone can argue that we are anatomically constrained to disregard all of those concerns?

This is one more incarnation of the tension between reason and rationalization, between analyses based on minimal assumption and assumption supported by minimal analysis. And that, I believe, is the tension that defines the distinction between much of progressive and conservative thought. (I’ll add one caveat: There are some aspects of progressive and conservative thought in which the roles are reversed; the optimal “ideology” is one which captures the reason that appears in each while weeding out the rationalization that appears in both.)

What serves us better than rationalizing preferred conclusions, entrenched habits of thought, on the basis of irrelevant or cherry-picked or fabricated supporting evidence, is to recognize that our current understandings and knowledge is less dispositive than we would like to believe, and to strive to apply reason to evidence, leavened with and inspired by disciplined imagination, in service to humanity. When we do that, we aren’t likely to argue, for example, that human dentation prevents us from changing paradigms in a way which better utilizes available land, better serves our health, and better exercises our compassion.

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There is a “liberals are hypocrites” post that is going viral among right-wing zealots on facebook, with thousands of shares and hundreds of comments on some of them, in which a news story about two African Americans who committed a violent crime against a white is, once again, proffered as proof that 1) George Zimmerman was right to pursue and shoot Trayvon Martin, 2) “Stand Your Ground” laws are good and necessary, 3) those who oppose them are trying to turn good, law-abiding (i.e., “white”) folks into unarmed innocent victims of bad, law-breaking (i.e., “black”) folks, and 4) Liberals are hypocrites because we aren’t concerned enough about black-on-white violence.

My following response, which is an expression of sheer disgust at continuing to see this ugly bigotry repeated over and over again, apparently resonating with far too many people, only addresses the first three of these issues. (The fourth can be summed up as follows: There is virtually no one defending black-on-white violence, and no laws bringing into question whether some incidents of it –or, more precisely, acts of violence by those you DON’T identify with against those you DO identify with– can be prosecuted or not. The reason the white-on-black violence of the Trayvon Martin shooting is a larger issue is because there are people defending it as a non-issue and advocating laws that make it more likely to occur more often.)

The news story (about an incident of black-on-white violence), used in this way, highlights the fundamental difference between almost all variations of right-wing ideology and almost all variations of left-wing ideology: The former is firmly rooted in fear and hatred, while the latter aspires to hope and humanity. Those on the right scoff that those on the left would be so naive, though, in reality, hope and humanity is not only a more positive orientation, but, when leavened with reason and information, is also more pragmatic, better serves one’s own self-interest, than the fear and hatred that informs those on the right. (See, for instance, Collective Action (and Time Horizon) Problems, for one reason why this is so.)

Those on the far-right are blithely indifferent to the death of an unarmed black teen at the hands of an armed white vigilante, because the armed white vigilante, in their mind, had every right to defend himself against any and all potential or perceived dangers, while the unarmed black teen lacked even the right to life, as long as it is one of them rather than the government that deprives him of it. One rationalization that is used is the presumption of guilt laid on the teen due to the possibility that he reacted violently to being pursued, something that these ideologues should respect rather than condemn, if we each have a right to protect ourselves against perceived threats! Ironically, however, they only defend the armed pursuer’s right to “defend” himself, and not the unarmed pursued’s right to do so!

If these right-wing ideologues had any integrity, any consistency, were anything other than implicitly racist hypocrits, they would not point to the possibility that Martin was beating Zimmerman before he (Martin) was shot as justification for the shooting, but rather with approval that Martin was defending himself against the armed individual pursuing him! Why aren’t they chanting that it’s a shame Martin didn’t kill Zimmerman before Zimmerman killed Martin, since it was Zimmerman who was the armed pursuer, and Martin who was the unarmed pursued?

But, of course, that’s not the way their little minds work, because it’s all about who they identify with, and who they identify as their implicit enemy. The armed vigilante is LIKE THEM, and that’s all that counts. The unarmed victim is THE OTHER that they fear and hate, and so his innocence, the fact that he had his life taken away unjustly, is just no big deal. They excuse the armed pursuer, because they identify with him (racially, and ideologically as an armed pursuer of someone he thought was a criminal); they implicitly condemn the unarmed teen to a death sentence without a trial because they don’t identify with him (racially, and as someone who someone like them was inclined to suspect of being up to no good). It’s the very nature of their way of thinking, and the reason why it should be odious to all rational people of goodwill.

What an amazingly convoluted ideology it is that does such contortions to be indignant that anyone would raise any objections to an armed pursuer shooting to death an unarmed teen apparently doing absolutely nothing illegal at the time the pursuit began, but spares no indignation whatsoever on behalf of the unarmed teen who was shot to death! The imagined threat to Zimmerman, who was both the pursuer and the wielder of deadly force in this instance, is more salient to them than the real danger to Martin, who was the pursued and unarmed victim of a shooting death!

What gets me most about this is what it indicates about how far we’ve sunk as a nation. This isn’t just a fringe ideology that a few grease-painted jack-asses adhere to. This has become a mainstream ideology, a cult of implicit violence and hatred justified by fear and generalized enmity.

It goes beyond the rationalization of offensive deadly violence by an armed pursuer against an unarmed victim, justified only by the pursuers “reasonable” fear of crime in general (!), essentially legalizing paranoid racist violence. It goes beyond conveniently targeting those “scary blacks” (as the news story used to stoke the right-wing indignation so poignantly illustrates) whose crimes justify Zimmerman acting as police, judge, jury, and executioner at the sight of a black kid in his neighborhood. It even goes beyond their assertion that there is no racism in America, that their now oft-invoked fear and hatred of those blacks who have not proven that they are not a threat isn’t racism at all, but rather merely the rational response to the “racism” of those who think that laws that facilitate killing unarmed black teens due to a generalized fear of crime are a bad idea.

It includes and goes beyond all of this. It extends to and is fed by the delusion that there is no social injustice in America, that people fare well or poorly primarily by virtue of their own merit,  a notion that is not only absurd on the face of it, but is also thoroughly disproved by statistical evidence (see The Presence of the Past). It combines a blithe indifference to the legacies of history that relegate people to sharply unequal opportunity structures at birth, with the equally blithe willingness to subtly loathe the entire categories of people who, born into such opportunity structures, are overrepresented among the poor. But irrational bigots are not swayed by such things as fact and reason and human decency.

The fact that such a belligerent, inhumane, and just generally dysfunctional ideology can survive as a major ideological strain in American culture is scary beyond belief. This cultural virus has always been with us, but never before in my memory so virulent and widespread as it is today. Anyone who has any desire for us to remain or become a rational and humane people needs to take stock of this, to repudiate it, and to oppose it, passionately and constantly, because it is truly ugly and destructive insanity.

(See the following related essays on different aspects of American racism and xenophobia: “Sharianity” and Godwin’s Law Notwithstanding.)

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Accessing Intensive Mental Health Services (AIMS) for Children Report:

The Co-Occurring Disorder Dilemma

Written by Steve Harvey, Esq., J.D., M.A.,

Funded by a University of Colorado Law School Judicial Fellowship

Executive Summary:

This paper addresses the widely reported but poorly documented problems in the coordination of Medicaid services for children and adolescents with co-occurring conditions with behavioral implications, including mental illnesses, developmental disabilities, autism spectrum disorder, traumatic brain injury, and fetal alcohol syndrome.

Even though the behavioral services and treatments appropriate for these conditions are often identical, the structure of Colorado’s Medicaid program is such that families must qualify for help from different providers, using different eligibility criteria, often based on an arbitrary assessment of which behavioral problems are attributable to which diagnoses. The consensus among professionals in the field is that there is no diagnostic or clinical basis for this distinction. It is an administrative artifact that leads to onerous difficulties for already overburdened families seeking services, and the potential denial of services to children who are both eligible for them and would benefit from them.

There appears to be widespread recognition of this problem among professionals and other stakeholders in the Colorado behavioral health and developmental disabilities communities. Families experiencing such obstacles most frequently report that they occur through informal denials, rather than a formal Notice of Action (NOA) that can be appealed or aggrieved.

It is the recommendation of this report that the state conduct a comprehensive study to determine the extent of the problem, what best practices should be implemented, and, if appropriate, what changes can be made to better coordinate and integrate related behavioral health services.

Table of Contents

Section One: Introduction……………………………3

Statement of the Problem…….……………………..3

Basic Overview of Colorado Medicaid and Behavioral Health Services…….4

Section Two: Statement of the Goals of the Project………………6

Section Three: Anecdotal Evidence……………………………………6

Case Study One…………………………………………………….7

Case Study Two…………………………………………………….9

Case Study Three………………………………………………..10

Anecdotal Evidence of Informal Denials (or “Non-Denial Denials”)…11

Section Four: BHO Formal Denials Data……………….12

Section Five: An Analysis of Relevant Issues…………14

Section Six: An Example of a Program That Works Well (Intercept Center)…..22

Section Seven: Possible Solutions and Recommendations………23

An Overview of Policy Goals……………………………23

A Survey of Specific Solutions………………………26

Conclusion…………………………………………………29

Methodology…………………………………………30

Section One: Introduction.

Statement of the Problem.

This report addresses a widely recognized but poorly documented gap in the provision of mental health services to children and adolescents1 on Medicaid who have co-occurring conditions with behavioral implications (which I will refer to throughout the report as the “Co-Occurring Disorder Dilemma”). Children who exhibit behavioral problems consistent with a covered mental health diagnosis, who also have such co-occurring conditions as developmental disabilities (DD), autism spectrum disorder (ASD), traumatic brain injuries (TBI), or fetal alcohol syndrome, are sometimes, perhaps frequently, formally or informally denied the mental health services to which they would otherwise be entitled.

My primary task, initially, was to determine the frequency and causes of the Co-Occurring Disorder Dilemma, and whether it required a system-wide solution. Some of the reports received by those who informed me of this problem indicated excessive administrative barriers. Some indicated poorly trained in-take personnel and misinformation given to applicants as a result. In the course of researching and compiling the report, some of the underlying dynamics of the problem became clearer, and some strategies for improving access to covered Medicaid mental health services for multiple diagnosis children and adolescents began to emerge. These strategies, as discussed in detail in Section Seven below, involve identifying the different kinds of obstacles to access involved, how they interact, and the different kinds of institutional reforms that can address them.

Cases coming to the attention of advocates and attorneys, and discussions with advocates, attorneys, providers and parents who have dealt with similar problems raised concerns that this might be a chronic, critical structural problem in the Colorado Medicaid program. In order to assess how prevalent this problem was, I simultaneously sought out quantitative data and anecdotal evidence. As discussed in the Methodology section at the end of this report, the research involved talking with stakeholders, reviewing documents, and requesting data, which was then sorted, distilled, assembled, and compiled to form this report.

The most critical conclusion that can be drawn from the evidence assembled is that some families, already burdened in extraordinary ways with children whose behavioral problems are onerous and overwhelming (often accepting this responsibility voluntarily by adopting children that others would not), are left without recourse, without assistance, and often with only desperation and frustration. They encounter a system that, to them, seems to be comprised of walls without doors. The evidence also demonstrates that this is not necessary. It is not dictated by limited resources but rather by limited imagination and resolve. Significantly superior outcomes are well within reach, outcomes more conducive to the individual and family welfare of those most directly impacted, and to our collective fiscal, economic, and social well-being.

This report examines one set of systemic problems in how we manage and provide mental health services to Medicaid-eligible children and adolescents. Nothing in this report is intended as an indictment of any individual or any particular organization, even when a critical eye is cast at the institution they represent or the incentives they are confronted with. The goal is to create systems that ensure optimal performance (including ensuring that the system most effectively selects and incentivizes the individuals within it), regardless of the particular individuals occupying particular positions at any particular time. The purpose of this report, then, is to help inform actions dedicated to realizing institutional reforms that reduce or eliminate the Co-Occurring Disorder Dilemma.

Basic Overview of Colorado Medicaid and Behavioral Health Services.

Medicaid is a federal program administered by the states that opt to participate in it (which all 50 states do), and funded jointly by federal and state governments. The Early Prevention, Screening, Diagnosis and Treatment (EPSDT) program is “Medicaid for children.” It eliminates the distinction between mandatory services (those that states must provide) and optional services (those that states may provide but don’t have to), obligating states to provide all medically necessary mandatory and optional services for all child and adolescent Medicaid clients. It also mandates a series of screening, diagnostic, and treatment protocols to ensure a higher lever of intervention and care for children on Medicaid.

Colorado Medicaid, in compliance with federal law, is overseen by a single agency, the Colorado Department of Health Care Policy and Financing (HCPF). This agency is completely separate from the Colorado Department of Human Services (CDHS), and the Colorado Division of Behavioral Health (CDBH) within CDHS.

HCPF contracts with five regional Behavioral Health Organizations (BHOs) to manage the provision of behavioral health (i.e., mental health and substance abuse) services covered by Medicaid. The BHOs are paid a “capitated” rate, determined by the number of people on Medicaid in their region, their eligibility category, and the historical trends concerning costs per person. The services themselves are provided by Community Mental Health Centers (CMHCs) and provider networks that contract with the BHOs. This managed behavioral health care system is often referred to as “Capitated Medicaid.”

The five BHOs, seventeen CMHCs, and five specialty clinics are members of an umbrella nonprofit organization called The Colorado Behavioral Healthcare Council (CBHC). CBHC represents the interests of these members.

The BHOs are contractually obligated to manage the provision of medically necessary covered services (as outlined in Exhibit E of the state’s contract with the BHOs), that carry one of the covered procedure codes listed in Exhibit F of the contract, for one of the covered mental health diagnoses listed in Exhibit D of the contract, by a provider credentialed to provide that procedure for that diagnosis (as outlined in Exhibit O of the contract).2

Diagnoses, services, and procedures not listed in Exhibits D, E, and F of the state’s contract with the BHOs, but otherwise covered by Medicaid, are considered “medical” services, and are administered separately through a system by which providers bill the state for each procedure or service according to a predetermined billing schedule. This is called “fee-for-service” Medicaid. The four major co-occurring diagnoses (DD, ASD, TBI, and Fetal Alcohol Syndrome), and most services commonly associated with them that are covered by Medicaid, are covered under the fee-for-service system.

Twenty geographically defined Community Centered Boards (CCBs) are responsible for meeting the needs of individuals with developmental disabilities and developmental delays. Various advocacy organizations, advisory councils and committees, comprised of various kinds of stakeholders (including service providers, government agency officials, managed care CEOs/EDs, advocates, and “consumers”), intersect with and overlap the formal structure described above.

Section Two: Statement of the Goals of the Project.

The original purpose of this project was to look beyond the anecdotal evidence to determine the scope, intensity, causes, costs, and possible solutions of The Co-Occurring Disorder Dilemma. But research quickly revealed that a fundamental aspect of the dilemma is the degree to which relevant data is either not collected or not aggregated and analyzed, leaving little information other than anecdotal evidence available for consideration.

Due to the relative lack of data, the project has evolved. Anecdotal evidence of the nature of the problem remained an integral component. But, rather than attempting to quantify it, emphasis shifted to an analysis of the underlying dynamics and issues involved. This analysis helps to frame consideration of the range of possible solutions, including programs currently in existence that do a better than average job of attending to the needs of multiple diagnosis children. Denials data generously provided by the Behavioral Health Organizations (BHOs) are also summarized and discussed.

This report does not address several related issues. Among them are deficiencies in funding, deficiencies in covered diagnoses and treatments, deficiencies in the availability of providers or facilities, or hospital denials of in-patient care to multiply diagnosed children in crisis. It does, however, touch upon the issue of the adequacy of training for providers and in-take personnel, since this is a crucial component of The Co-Occurring Disorder Dilemma.

Section Three: Anecdotal Evidence

Among the parents, advocates, program directors, and service providers that I interviewed, there is a widespread and deeply felt perception of a serious and pervasive problem that needs to be addressed. At a stakeholder meeting held by the Colorado Department of Human Services (CDHS), there was repeated discussion of what I am now calling the Co-Occurring Disorder Dilemma by various stakeholders and a murmur of acknowledgement by other attendees whenever it was mentioned. While popular perception of a phenomenon does not prove its existence, popular perception by professionals of a problem relating to their profession is at least suggestive and warrants due attention.

Other than such perceptions, the principal evidence for the existence of the Co-Occurring Disorder Dilemma is comprised of the personal stories of those parents of multiple diagnosis children who have encountered it. A few of those stories are recounted below.

Case Study One.

C (child) was placed in P’s (parent’s) home when C was 6, having suffered severe abuse in his birth home. His birth family, for instance, had tried to “cure” his Tourette Syndrome by pouring caustic chemicals down his throat.

C had a low IQ and was at times very violent, flying into uncontrollable rages. In one instance, he broke both the hands of his disabled adoptive father and cut his (the father’s) face with broken shards of glass. He also frequently tried to hurt himself. When not suffering such an episode, however, he had a completely different personality, and would be overcome with remorse. This was a heavy burden for P and her husband, who undertook this responsibility that few others are willing to.

Despite this pattern of behavior, and his mental health diagnoses of mood disorder, PTSD, and OCD, his BHO never authorized residential services for C, even after episodes of extreme violence. The BHO said he wouldn’t benefit from behavioral health services, that his behavioral problems were a result of his developmental disability rather than his mental illness, and that the behavioral issues were the responsibility of the Community Centered Boards (which address developmental delay issues) rather than of the BHOs.

On three occasions, once for six weeks, P managed to access the Neuro-psychiatric Special Care (NSC) in-patient and day treatment services at Children’s Hospital, an excellent but overburdened treatment program for children with dual (or multiple) mental health and developmental disability diagnoses. NSC bills as a psychiatric treatment center under capitated Medicaid (requiring a mental illness diagnosis, as C had, and a BHO determination that the behavioral problems for which treatment is being sought is a result of the mental illness, as P had to advocate for). C had received medical services related to a suicide attempt, and, due to the bifurcated billing discussed below, could not access mental health services at the same time. While in the NSC center, follow-up surgery was required, but to get it, P would have had to have C discharged from the NSC unit and readmitted on the medical side, causing C to lose his place in the NSC unit and be placed on a six month waiting list to get back in.

According to P, her BHO had told her that since C was adopted, C was social service’s responsibility, but this is only true in dependency and neglect cases. When C was 12, social services placed him in the category of “at-risk youth” or “child out of control of parents,” adding their interventions to the burdens that P was facing. Thus one of the perennial problems of bringing in social services arose: P faced a threatened dependency and neglect determination. Having adopted a child with developmental disability and mental illness diagnoses, seriously abused in infancy, showing signs of PTSD and Reactive Detachment Disorder, desperately seeking appropriate care for this child, P found herself under a cloud of presumed suspicion.

During the course of this years-long ordeal, P had to use the emergency room as an alternative to the residential care that C needed, as is frequently reported in such cases. On one occasion, she had to wait in the emergency room until a bed opened up for C, bringing her husband and plugging his ventilator into a wall socket in the emergency room, and not going to the bathroom (which would have been considered “abandonment” of the child). After all that, C was not admitted because the BHO was called and refused to cover the expense.

As numerous service providers, advocates, and family members have noted, only the most tenacious parents, who advocate relentlessly for their children, generally succeed in cutting through these kinds of obstacles. For instance, it was a threat by P to file an American with Disabilities Act (ADA) Section 504 complaint that first got the BHO to the table after continually refusing to provide mental health services.

As a result of P’s tenacity, some progress was made on the DD (fee-for-service) side. C was placed on the wait list for the children’s extensive support (CES) waiver. The CES waiver is for DD children who need 24 hour line-of-sight care, and provides about $30,000 of services, in-home behavioral support and respite care. P’s CCB used local money for people on the wait list and provided in-home behavioral support. Eventually, the Colorado Cross Disability Coalition (CCDC) got everyone at the table to kick in something for in-home care, and talked about creating a virtual residential treatment center in the home. (C passed away due to complications related to his pre-adoption abuse before this could be implemented.)

Case Study Two.

Q (parent) adopted D (child) when D was two weeks old. There were immediate neurological symptoms. D was originally diagnosed with attachment disorder. Therapy helped a little.

D was later diagnosed with Schizophrenia, “mood disorder with psychotic features,” and ASD, and received a year of day treatment. Q believes that the behavioral issues need to be treated regardless of the diagnostic labels attached to them, but relies on the mental illness diagnoses to access necessary and appropriate mental health treatments for D.

Despite the Schizophrenia diagnosis, Q’s BHO refused to provide behavioral treatments appropriate to D’s mental illness diagnosis, stating that the BHO doesn’t provide services for Autism. Subsequently, Q used D’s Schizophrenia diagnosis to obtain treatment, without disclosing that D also had ASD.

Q insists that the mere mention of the word “autism” provokes a negative response by BHOs and CMHCs. “You can almost hear the screeching of the brakes at the other end of the line.” But Q argues, as do many others (including clinicians), that Autism disrupts communication and social skills, resulting in behavioral symptoms that can be treated in the same way that behavioral symptoms associated with mental illnesses can be treated. However, Colorado Medicaid distinguishes between behavioral problems that are a result of Autism (or other developmental disabilities), and identical behavioral problems that are a result of a mental illness.

Q noted one of the most oft-cited disconnects resulting from this artificial distinction (discussed in more detail below): That Applied Behavioral Analysis (ABA) is an autism-specific treatment that has a behavioral health billing code. This means that ABA can only be accessed if the patient has a mental illness diagnosis, despite the fact that Autism (for which ABA is considered the standard of care) is categorized as a medical diagnosis. Q discussed (as did many other providers and advocates in my conversations with them) the need this imposes on parents and providers to rely on creative coding and labeling to navigate the system.

Q reiterated another frequently repeated observation: That it’s hard to imagine someone who isn’t a professional advocate, or otherwise thoroughly versed in the intricacies of the system, navigating the system. Q observed that there are three systems that have to deal with and pay for children’s maladaptive behaviors: Education, Health Care, and Juvenile Justice. Each wants to shift the burden to the others. And since Juvenile Justice is the only one that can’t deny services, too many children in need of behavioral health services end up in the Juvenile Justice system.

Case Study Three.

E (child), who is diagnosed with psychotic disorder, autism, and mood disorder, has long suffered from explosive tantrums, auditory and visual hallucinations (sometimes “advising” him to act violently), anger, obsessive behaviors, volatile mood swings, and other symptoms. E is a teen-age male, who, like C in Case Study One, poses a risk to self and others. At home, E is often aggressive and demanding, damaging property, having difficulty with personal hygiene, and in general lacking independent living skills. R (parent) was particularly concerned for the safety of a much younger sibling also living in the home.

Despite these symptoms, as in the case of C described in Case Study One, the parent and other adults who have had contact with E describe him as “a sweet kid.” They perceive the symptoms of his mental illness to be distinct from his essential character as a human being.

E was placed in a succession of out-of-classroom programs by the school district, from kindergarten onward. He has relied on outpatient therapy and medication nearly all his life. He was hospitalized several times due to his behaviors at home. The BHO refused to pay for his last hospitalization, claiming that it was not due to a covered diagnosis.

R (parent) originally sought day treatment for E, in which E could receive both mental health and educational services, which had previously proven very useful. The BHO denied day treatment for E, insisting that in-home treatment was more appropriate and less costly. E’s doctors were adamant that E needed day treatment, that it was a medical necessity. The BHO insisted that the behavioral issues were due to E’s developmental disability rather than a covered mental illness (despite the ample mental illness diagnoses), and that day treatment “wouldn’t do him any good,” despite the fact that it had done him good in the past, and that his doctors adamantly recommended it for him.

In the course of negotiations on this matter, the BHO tried to place responsibility for E’s mental health care on the school district, insisting that it was a problem for Special Education to deal with. Eventually litigation was threatened, and the BHO made some concessions to avoid it, reversing its decision regarding day treatment, but authorizing it for an insufficient length of time. R continued to struggle with the BHO over the provision of appropriate and necessary mental health services for E.

R agreed to try in-home therapy, but it has not been very successful. Due to the continuing threat to the safety of E himself and others in the household, E’s psychiatrist and his clinician both recommended residential care for E, stating that “out of home placement in a residential setting is strongly indicated . . . [T]his level of care has the potential to improve [E’s] psychiatric status and his functioning. [E] has responded best to a structured, supportive, therapeutic setting.”3 Despite these strong recommendations, the BHO refused residential care, stating that “[E’s] psychotic symptoms would not be expected to benefit from or require residential treatment level of care.”

R appealed the BHO’s decision, and received several independent evaluations confirming the need for residential care for E. In the light of this overwhelming evidence contradicting the BHO’s refusal of services, an Administrative Law Judge recently reversed the BHO’s decision to refuse residential services to E, ordering that the services be provided.

Anecdotal Evidence of Informal Denials (or “Non-Denial Denials”).

Almost all of the parents I interviewed reported similar experiences of receiving “informal denials,” either prior to, or in place of, formal ones (known as a “Notice of Action,” or NOA), which are necessary to initiate a grievance or appeal. In one particularly revealing incident, a CMHC had accidentally sent the parent the evaluating physician’s confirmation that the child had a covered mental health diagnosis and was eligible for services. But the CMHC then informally denied that child services, neglecting to send a letter of denial. Another parent reported that her CMHC refused mental health services to her child with a mental illness, who had suffered a brain injury sometime after receiving his mental illness diagnosis, because “we don’t treat medical conditions here” (implying that since a brain injury is a medical condition, all behavioral problems will be attributed to it, despite the fact that the bipolar diagnosis predated the brain injury). A BHO official confirmed this decision, showing this parent the contract, in which it is stated that the BHO is not responsible for medical problems. No Notice of Action was issued.

One parent spoke of the confusing forms, the inflexibility of in-take policies and procedures, how when laryngitis made it impossible for her to participate in a scheduled telephone call, she was kicked back to the beginning of the entire process of applying for access to services. She was not provided with information about respite care when she inquired into it. This parent, too, stated that she is not able to access services for her child if she mentions that the child has a developmental disability as well as a mental illness, without an NOA ever being issued.

Several parents, most advocates, and even many providers indicated that such informal denials occur with great frequency at various stages in the process, from intake to post-evaluation. Reports include clients being told by in-take personnel that violent behaviors by the child preclude eligibility for Medicaid covered mental health services, that such behaviors are a matter for the police and not for mental health care providers, or that network providers would have to be used but receiving outdated provider lists with disconnected numbers or otherwise inaccessible or non-existent providers. Clients (particularly adoptive parents) have also reported being inappropriately referred to social services for conditions that are Medicaid’s and not social services’ responsibility to address.

Section Four: BHO Formal Denials Data

According to the data provided to me by CBHC and the five BHOs, out of a total of 58,115 child and adolescent clients served (all children and adolescents served through the BHOs, according to Brian Turner of CBHC not just those on Medicaid or those with multiple diagnoses), there were 54 denials based on Co-Occurring Disorders (almost half by one BHO) issued by all five BHOs to no more than 49 individuals (not all BHOs indicated when multiple denials were issued to the same person) over an 18 month period. This data does not suggest a high rate of such formal denials, but three things should be born in mind: 1) We have not been provided with the relevant denominator, which is the total number of multiple-diagnosis Medicaid eligible children served, to determine what portion of those children are denied services due to their co-occurring conditions; 2) most of the personal stories related to me don’t involve the issuance of NOAs (and thus are not included in this data) but do result in denials of services, raising the question of the prevalence of “informal denials;” and 3) this is self-reported data by the BHOs that cannot be verified, and is not subject to any independent oversight.

To underscore these points, one BHO reports only 8 denials for 6 individuals during the 18 month period under consideration, though one of the CMHCs affiliated with it has a widespread and intensely felt reputation among the mental health advocates and providers I talked with for overzealous denials of services, particularly to multiple diagnosis children. (One professional, in no way affiliated with that CMHC, told me that the medical director of that CMHC has explicitly stated that he considers any behavioral problem that occurs in a child with a developmental disability to be by definition a neurological rather than a mental health problem, and thus never the result of a covered diagnosis, despite the protocol developed to ensure that such blanket denials of mental health services to children with developmental disabilities are not public policy.) Conversely, another BHO which includes a program with a stellar reputation for ensuring that multiple diagnosis children receive appropriate services, reports 11 denials of services, and gave by far the most complete and detailed information for each case of all five BHOs.

While the 54 formal denials of services to those children with co-occurring conditions, representing less than one thousandth of the total number of child and adolescent clients served, may not seem like an alarmingly high rate of occurrence, it is nevertheless a heavy burden for the families involved, and may represent a pattern of treatment toward a particular subclass of clients. Furthermore, this data gives us no insight into how many families were informally denied services, by being turned away before any official request for services was recorded.

Section Five: An Analysis of Relevant Issues

There are clearly numerous human, social, fiscal, and economic costs implicated in the failure to address this problem. The human costs borne by the individuals and families directly impacted are enormous, and well-represented by the anecdotal evidence reported above. The social costs include increased prevalence of socially maladaptive behaviors that can at times become violent or criminal in nature. The fiscal costs are typical of those borne by society when we are “penny wise and pound foolish,” failing to invest in proactive policies that reduce far larger and more cumbersome reactive costs. One simple and obvious example is the overreliance on expensive emergency room care for chronic conditions when less expensive and more effective appropriate preventative treatment is recommended. The economic costs include reduced productivity and an increased burden on our juvenile justice and criminal justice systems due to the failure to proactively address this and related problems.

In order to avoid these numerous and onerous costs, we need to meet the challenge of resolving The Co-Occurring Disorder Dilemma. The major interrelated structural problems that need to be addressed and rectified are:

1. The bifurcation of capitated Medicaid for mental health problems, and fee-for-service Medicaid for “medical” problems (which include co-occurring conditions such as developmental disabilities, ASD, TBI, and fetal alcohol syndrome), despite the fact that this distinction often segregates identical behavioral problems requiring identical treatments, distinguished only by the context in which they occur.

2. The distinction made between identical behavioral symptoms according to the presence or absence of diagnostically and clinically independent co-occurring conditions.

3. The need to align covered diagnoses (i.e., diagnoses that are covered under either fee-for-service “medical” Medicaid or capitated “behavioral” Medicaid) with covered treatments in the same silo (i.e., treatments that carry a billing code that falls into either fee-for-service or capitated Medicaid, matching the silo of the covered diagnosis). This is exacerbated by possibly overly-restrictive authorization of providers, even though clinical best practices require a more fluid matching of treatment, diagnosis, and provider according to particular confluences of circumstances.

4. The insufficient cross-training of mental health care providers in issues specific to people suffering from co-occurring conditions (particularly DD and ASD).

5. Insufficient integration of services and coordination of service providers.

6. Insufficient assistance to clients trying to navigate the confusing and convoluted behavioral health care system.

7. Insufficient tracking and oversight of formal denials of services by independent contractors paid a set fee to manage the provision of mental health care services under Medicaid.

8. Non-existent tracking and oversight of the apparently more pervasive informal denials, such as clients potentially eligible for services being told on the phone or at the front desk that they are not.

9. Insufficient training of in-take personnel, leading to an increased frequency in the occurrence of informal denials.

Structural problems 1-5, above, can be categorized as “siloing” problems. “Siloing” refers to a separation and lack of coordination among interrelated services, agencies, and procedures. Siloing is widely understood among those involved in publicly provided human services to be a fundamental structural problem, obstructing the efficient and effective delivery of services. Siloing clearly is a major factor contributing to the difficulties facing families of multiple diagnosis children and adolescents.

The first type of siloing listed above is the administrative lynchpin of the problem. Diagnostically and clinically identical maladaptive behaviors can fall into one of two administratively distinct categories: Fee-for-service “medical” Medicaid, or capitated “behavioral health” Medicaid. The latter include behaviors deemed to be caused by a diagnosed mental health disorder, and thus the responsibility of the BHOs and their provider networks to cover. The former include behaviors that are deemed to be caused by any of various co-occurring conditions (Autism Spectrum Disorder, Developmental Disability, Traumatic Brain Injury, Fetal Alcohol Syndrome), and thus the responsibility of fee-for-service Medicaid to cover.

The second, closely related, example of siloing implicated in the Co-Occurring Disorder Dilemma is the segregation of exhibited behavioral problems into those associated with a mental illness, and those associated with some other co-occurring condition. According to Dr. Judy Reaven, a child psychologist with JFK Partners at the University of Colorado School of Medicine, there is no diagnostic or clinical justification for this distinction. There is general agreement with this view among other clinicians I spoke with, such as Cory Robinson, Director of JFK Partners, and Dr. Marianne Wamboldt, Chair of the Department of Psychiatry and Behavioral Sciences at Children’s Hospital. All three agree that this is the prevailing view among clinicians.

Dr. Reaven emphasizes that there is no basis for distinguishing behavioral problems manifested by a child (or adult) with a developmental disability and behavioral problems that are symptomatic of a mental illness. Neither in terms of what we know about underlying causes, nor in terms of the efficacy of standard treatments, does such a distinction have any justification. Since there appears to be no medical basis for making such a distinction, it is an administrative artifact which serves as an obstacle to the implementation of clinical best practices, and facilitates the denial of mental health services to those who both need them and, by law, are entitled to them.

In Dr. Reaven’s words:

Related to the artificial distinction between “behavior” that is symptomatic of DD vs. a mental health condition, is that clinicians are asked to independently treat “mental illness,” and “autism or other DD” knowing full well that diagnostic complexity exists in most of the patients we see. It is nearly impossible to identify the specific symptoms that are only ASD vs. symptoms that are only mental illness. Finally – best practice would suggest that clinicians consider the whole child, as knowledge of the whole child must inform the specific treatment and modifications necessary for enhanced efficacy of the intervention. Not allowing clinicians to even acknowledge the complexity of patient’s presentation in many cases can lead to a superficiality of treatment.

Related to this is a phenomenon known as “diagnostic overshadowing” (coined by Steven Reiss in 1983), a tendency to disregard the diagnostic indicators if behaviors can be attributed to a developmental disability instead of to the mental illness diagnosis consistent with the behaviors, even though the presence or absence of the developmental disability is generally not diagnostically relevant. Again, in Dr. Reaven’s words:

Diagnostic overshadowing refers to the tendency to attribute behavioral challenges and mental health symptoms in an individual with DD or ASD, solely to the developmental disability or ASD, rather than assign an additional mental health diagnosis, even if the symptom presentation are all consistent with such a diagnosis; in other words, mental health symptoms are “overshadowed” by the DD/ASD and as a result are not appropriately identified or treated.

While co-occurring conditions can be clinically relevant, just as any number of other contextual factors can be, their presence does not generally imply that the use of standard mental health treatments and therapies will be ineffective, only that such treatments need to be adapted appropriately to the needs of the individual child, as is always the case. So, for instance, if a child has a developmental disability that affects his or her ability to communicate verbally, this is a factor that must be taken into account, not a factor which renders irrelevant the child’s mental health treatment needs.

According to the 2011 Ombudsman’s Report, BHOs do (and are contractually authorized, perhaps required, to do) precisely what Dr. Reaven described above as impossible and irrelevant to do: differentiate between similar behaviors as in some cases an artifact of a developmental disability and in other cases an artifact of a mental illness. According to the report, regardless of the diagnoses that exist, there is “a reluctance on the part of plans to approve treatment services for behaviors that may be caused by a medical diagnosis (autism or traumatic brain injury) which are then exacerbated by mental health conditions, or vice versa” (emphasis added). The key phrase above is “may be,” because, while the BHOs are contractually empowered to make such distinctions, they are rarely diagnostically or clinically justifiable.

Marceil Case of the Colorado Department of Health Care Policy and Financing (HCPF), the state agency which oversees Colorado Medicaid, stated at one point, in an interview with me, that if the BHOs determine that there is a mental illness diagnosis, then the BHOs are responsible for covering behaviors that are associated with that diagnosis, regardless of whether the client has a co-occurring developmental disability. The ambiguity of this statement sheds some hazy light on the nature of the problem, because the determination to provide or deny services hinges on whether the BHOs determine that the behavior meets the higher threshold of being caused by the diagnosis, rather than the more clinically meaningful threshold of being consistent with the diagnosis.

In fact, BHOs are authorized (perhaps required) to deny services for behaviors “associated with” a covered mental health diagnosis, if the BHO asserts that the behaviors are the result of a co-occurring condition rather than of the covered mental illness. Given that making such determinations reduces costs incurred by the BHOs, that such determinations can be and are at times made in opposition to clinical recommendations, and that such determinations are not automatically reviewed, it is economically axiomatic that such determinations are likely to be made excessively.

But even were the clinically more relevant criterion relied on, that any behavior requiring treatment that is “consistent with a covered mental health diagnosis” be covered, it still would leave open a large loophole through which services can be denied: It is left to the BHO’s discretion to determine whether such a mental health diagnosis actually pertains, a determination not bound even by what their own CMHCs or independent mental health providers may say. Therefore, the BHOs are free to claim that a behavioral problem exhibited by a child with a developmental disability is the result of the developmental disability rather than of a mental illness, even if that child has been clinically diagnosed with a mental illness, and even if they were obligated to provide services for anyone they deem to have a covered diagnosis (which is not currently the case). In practice, the BHO has complete discretionary power to determine whether the child has or does not have a covered mental health diagnosis. And, again, such determinations are not subject to automatic review.

In other words, the BHOs have complete discretionary authority to determine, independently of clinical recommendations, both whether a client exhibiting behaviors consistent with a covered mental health diagnosis actually has that diagnosis, and whether, if so, the exhibited behaviors are the result of that diagnosis. (The decisions can be appealed by the client, but the nature of the problem at hand is, in part, that there are so many obstacles strewn in the paths of clients. There is such a maze of bureaucratic hoops to jump through, that already overburdened parents and guardians seeking behavioral health services for their multiple-diagnosis children find themselves forced to become assertive self-advocates. As a result, they must either dedicate considerable time and effort that they can ill-afford, or fail to obtain services to which they are entitled.)

The third type of siloing listed above requires that only therapies that carry a billing code associated with one or the other of the two administrative silos (capitated or fee-for-service) are administered only for diagnoses that are covered under that same administrative silo. In other words, a therapy coded as a behavioral health treatment cannot be used for a diagnosis whose billing code is fee-for-service, even if that therapy is the standard of care for that diagnosis. This administrative requirement obstructs rather than facilitates clinical best practices: Appropriate and covered therapies should be provided for appropriate and covered diagnoses, by any qualified and competent service provider.

The consequences of failing to allow any covered therapy to be provided by any authorized and qualified behavioral health provider for any covered diagnosis is to effectively deny covered services for covered diagnoses to eligible recipients; to reduce the quality of care to many of those who do receive services; and to force frustrated providers to work around these arbitrary obstacles by making a mockery of the labels that impose them in the first place.

Brian Tallant, the program director at Intercept Center (a joint program between Aurora Mental Health Center and Aurora Public Schools discussed below), offers the following example of this problem:

Best practices for the treatment of Autism is a combination of Applied Behavioral Analysis (ABA), speech/language therapy and occupational therapy. ABA is considered a behavioral health service, and typically has a behavioral health CPT (Current Procedural Terminology) code that corresponds to that service. Speech/language therapy, as well as occupational therapy, are medical services and have corresponding medical CPT codes. Capitated (Behavioral Health) Medicaid has a list of covered psychiatric diagnoses, but excludes Autism as a neurological or medical condition, and therefore ABA interventions are not authorized based on the diagnosis of Autism. If a clinician provides ABA services under the diagnosis of Autism, and tries to bill medical fee-for-service Medicaid for ABA services, using behavioral health CPT codes, it is often rejected as being a “behavioral health” service, which should be covered by Capitated Medicaid. So you see how a child with Autism is caught between a system that excludes their behavioral treatment either by diagnosis (Capitated Medicaid), or by service code (medical fee-for-service Medicaid).

Brian Tallant describes how the provider is also caught up in the siloing of particular treatments for a particular diagnosis:

[T]he problem mostly rests with Applied Behavior Analysis (ABA), or other “behavioral” services, that are provided by a professional that has more of a behavioral health training and/or certification. These professionals can provide services that are best described by behavioral health service codes (ICD-9 codes), when they are authorized and approved for treatment of a covered diagnosis under capitated Medicaid. If a person has a medical diagnosis (excluded mental health diagnosis), such as autism or TBI, the behavioral therapist does not have medical ICD-9 codes that allow for billing under fee-for-service Medicaid. Behavioral services codes are rejected by fee-for-service Medicaid as being “behavioral health” services, even though they are qualified to provide those services, and they are treating a medical condition.

While this may be little more than a restatement of the problem of having to align covered diagnoses and covered treatments under a single silo, it draws attention to the fact that a provider fully qualified to provide the treatment that represents best practices for a given diagnosis may be prohibited from providing that treatment, simply as a result of how the treatment is coded.

The fourth and fifth types of siloing listed above involve the siloing of expertise, both by a lack of cross-training of service providers, and a lack of coordination among service providers. Due to a lack of cross-training, clinical assessments are made by service providers who may not understand the relationships between, for instance, developmental disabilities and mental illnesses, and thus make diagnostic and clinical judgments that are only partially informed. Due to the lack of coordination among service providers, clients seeking services in one silo may not be directed to services appropriate for them offered in another. This siloing of expertise exacerbates the interacting dysfunction of the first three administrative forms of siloing by reproducing and reinforcing it at the level of service provision.

The final four structural problems listed above are not siloing problems, but are rather problems in assistance to clients and oversight of managed care providers. They interact with the five siloing problems by leaving clients to fend for themselves in a system posing numerous obstacles to their ability to access appropriate services.

Many parents of multiple diagnosis children who are also knowledgeable advocates for the interests of multiple diagnosis children note that no one who is not a trained advocate could possibly hope to navigate this convoluted and obstruction-strewn system effectively. The anecdotal evidence is rife with stories of parents being misinformed, misdirected, and given a general run-around, while dealing with the other onerous burdens of raising developmentally disabled and mentally ill children. Clearly, this nightmarish maze that such parents must try to negotiate, against obstacles both intentional and unintentional, is a major part of the problem with how this system functions…, or fails to.

This bureaucratic labyrinth, which serves interests other than those of the clients who need to access the system, is left largely unchallenged due to a lack of administrative resolve and oversight. No state agency or advocacy organization is tracking formal denials of mental health services other than the independent (two nonprofit and three for-profit) contractors that have a financial incentive to deny them. No state agency or advocacy organization is extracting and analyzing information about the reasons given for denials in cases that are aggrieved or appealed. No state agency or advocacy organization is attempting to systematically track or assess the apparently far larger problem of informal denials, in which applicants are obstructed from accessing services to which they are entitled in ways that do not result in a formal Notice of Action (NOA). The first step to remedying the Co-Occurring Disorder Dilemma is to rectify this glaring lack of data collection and administrative oversight, and the enabling lack of sustained, focused advocacy insisting on such data collection and oversight.

Clearly, the imposition of new administrative burdens is not to be taken lightly. But the glaring deficiency in this case suggests that perhaps the current distribution of administrative burdens is not optimally targeted.

Section Six: An Example of a Program That Works Well

Intercept Center

Intercept Center is a joint program of Aurora Mental Health Center and Aurora Public schools, established in 1995, to accommodate the educational and behavioral health needs of Medicaid-eligible children from ages 5 to 21 with both a covered mental health diagnosis and a developmental disability. Aurora Public Schools provides the building, special education teachers, paraprofessionals, instructional materials, and itinerant special education staff and services, while Aurora Mental Health Center provides the mental health treatment services and personnel. Aurora Mental Health Center and Aurora Public Schools are currently putting together a Memorandum of Understanding to more fully formalize this joint venture.

Intercept Center operates as both a school and a day treatment center, with students receiving both their educational and behavioral health treatment needs in one location and under the auspices of one program. Intercept Center also functions as an intensive services outpatient clinic for multiply diagnosed children in the Aurora area. The relative success of Intercept Center in reducing or eliminating the gap in services encountered by many multiple diagnosis children on Medicaid is due, in large part, to the training of the mental health service providers there, and the assertive coordination with other facilities and programs to accommodate needs that fall beyond the parameters of the services that Intercept Center provides.

The success of such a program requires the willingness of the overarching Behavioral Health Organization (in this case, BHI), to permit a more rather than less inclusive determination of eligibility for services, and the stewardship of a program director (in this case, Brian Tallant) committed to ensuring that applicants receive any and all services to which they are entitled, whether under the auspices of this program, or through another service provider more appropriate to that particular child’s needs. Unfortunately, under our current overarching system, the satisfaction of these two necessary conditions is the exception rather than the rule.

While Intercept Center does not currently bill fee-for-service Medicaid to provide (“medical”) services that are not covered under capitation (“mental health services”), it does coordinate with providers who do. Aurora Mental Health Center is contemplating expanding the Intercept Center program to provide behavioral services that are covered under fee-for-service Medicaid, as well as the behavioral services that are covered under capitated Medicaid.

Intercept Center does not provide residential services, but has a close relationship with Smith Agency, which is a child placement agency for foster care, and the provider of Serenity Group Homes and Serenity Learning Center. Intercept identifies children who need residential treatment, informs parents of the procedures to go through and of the various options available to them. In one case, Intercept assisted foster parents in expanding their business into a group home, which they wouldn’t have been able to do without Intercept’s support and guidance. Intercept Center providers also go into Residential Child Care Facilities (RCCFs), which serve children with developmental disabilities, to provide certain mental health services on-site (particularly, capitated Medicaid-covered individual and group therapies), but children in RCCFs must come to Intercept Center for medication to be administered.

Intercept Center is evidence of the fact that it is possible to design and implement a relatively well-functioning model under the auspices of Colorado’s current Mental Health Medicaid system, but also, in its exceptionalness, of the fact that such models are not the inevitable by-product of that system. To the extent that we continue to operate within current parameters, one immediate goal is to ensure that the Intercept Center model is replicated as widely as possible. To the extent that we change those parameters, one intermediate goal is to ensure that the lessons of Intercept Center inform systemic and mandatory changes.

Section Seven: Possible Solutions and Recommendations

An Overview of Policy Goals

The principal recommendation of this report is that the relevant governmental agencies systematically research and remedy The Co-Occurring Disorder Dilemma, with persistent resolve and unflagging determination. Since this has not yet happened, and there is no evidence of it spontaneously occurring, the secondary recommendation is that all relevant advocacy groups place sustained, informed pressure on those governmental agencies and office holders to do so. The State of Colorado needs to commission a comprehensive study, incorporating data that either currently does not exist or cannot be accessed, and, based on that study, design and implement an affirmative plan to rectify the obstacles to access to mental health services faced by children and adolescents with co-occurring conditions.

The state has a number of options for addressing and rectifying the major interrelated structural problems listed in section five, above. We need to design and implement a set of policies which:

1. Eliminates the effect of bifurcation of Medicaid into capitated and fee-for-service enclaves, either by (ideally) eliminating the bifurcation itself or (more practically) perforating the wall between them sufficiently that it ceases to obstruct the diagnostically and clinically appropriate and necessary provision of services.

2. Eliminates the effect of administrative (diagnostically and clinically unjustifiable) segregation of identical behavioral problems according to whether they are administratively deemed to be the result of a mental health diagnosis or some co-occurring condition.

3. Eliminates the need to align providers, diagnoses, and treatments under one or the other of the two Medicaid silos described in numbers 1 and 2, above. This primarily involves eliminating the need to provide only behavioral therapies and treatments with a billing code that corresponds to the silo (either fee-for-service or capitated) that the behaviorally related diagnosis is covered under. A more flexible system is needed to ensure that any covered treatment for any covered diagnosis can be provided by any competent and qualified behavioral health service provider.

4. Ensures that behavioral health providers are appropriately cross-trained to know how to effectively diagnose and treat co-occurring developmental disabilities and mental illnesses.

5. Ensures the integration and coordination of services and service providers.

6. Ensures the shifting of the burden for navigating the complex and confusing behavioral health care system away from overwhelmed clients often poorly equipped to take on such a challenge, and onto designated and adequately trained personnel within the system itself.

7. Ensures comprehensive tracking and analysis of denials of services by responsible governmental agencies, and the exercise of adequate oversight of the BHOs contracted to manage the provision of covered services to those who are entitled to them. (The bureaucratic burden of doing so must be taken into account, and a careful cost-benefit analysis pursued, but it is clear that we currently have a sub-optimal level of such tracking and analysis in place, essentially “leaving the fox in charge of the henhouse.”)

8. Ensures a dedicated investigation and rectification of informal procedures by which services may be denied without any formal request for services ever being recorded, and thus no formal denial ever being issued.

9. Ensures that in-take personnel and other gate-keepers are adequately trained to record and follow up on all requests for services, to turn no one away on the basis of any peremptory assumption that clients seeking services are not entitled to services.

The structural factors and associated policy goals listed above fall into three categories: Gateway Problems (6-9), Service Provision Problems (4-5), and Underlying Structural Problems (1-3). The Gateway Problems are problems at the point of interface between clients and the mental health care system. They involve insufficient oversight of the formal and informal ways in which clients are refused services (7 and 8, respectively), and insufficient guidance and inaccurate information provided to clients seeking services (6 and 9, respectively). The Service Provision Problems are problems that affect access to services by dispersing rather than consolidating service provider expertise. They involve insufficient expertise regarding multiple diagnosis issues within individual service providers (4), and insufficient coordination of expertise among service providers (5). The Underlying Structural Problems are problems embedded in the administrative structure of Colorado Medicaid. They involve, collectively, an incongruence between the administrative structure for the delivery of mental health services, and the clinical reality of the delivery of mental health services.

Specific strategies for addressing the Co-Occurring Disorder Dilemma involve addressing specific combinations of the above policy goals for specific purposes. For instance, as Intercept Center’s success illustrates, by addressing the Service Provision Problems and one Gateway Problem -numbers 4, 5, and 9- local programs can dramatically reduce the Co-Occurring Disorder Dilemma on their own initiative (and with the support of their BHO). By concentrating and coordinating expertise in both mental illness and developmental disabilities, and ensuring that there is an open gateway to that consolidated expertise, a local program can distinguish itself even in the context of the other six unresolved structural problems.

Numbers 4, 5, and 9 can be addressed proactively, by any BHO or CMHC that chooses to take the initiative. Thus, significant local improvement in the provision of services to multiply diagnosed children can be accomplished even in the absence of statewide public policy changes. However, a sustainable and reliable statewide paradigm shift will almost certainly require overarching public policy refinements. And even such relatively successful local programs as Intercept are limited in the degree to which they can effectively address the Co-Occurring Disorder Dilemma by a lack of facilitating statewide policies.

The remaining Gateway Problems and related policy goals, 6-8, suggest a second strategic avenue comprised of direct advocacy for immediate and easily implemented administrative reforms. These do not require any major structural changes, simply superficial changes in policy that, for instance, provide clients seeking services with personnel competent to guide and inform them, and implement more diligent administrative oversight of the mental health managed care system.

Finally, the far-reaching statewide administrative structural changes conducive to eliminating or reducing the Co-Occurring Disorder Dilemma are summarized in numbers 1, 2, and 3, above. These would require significant legislative and administrative action, and are thus higher hurdles to clear. Progress on Underlying Structural Problems neither requires nor is a requirement of progress on either Gateway or Service Provision Problems. Long-term structural strategic goals and short-term immediately ameliorative strategic goals can be pursued independently and simultaneously.

A recommended comprehensive strategy for those who choose to act on this report, therefore, is to seek immediate widespread, either centrally directed or CMHC by CMHC, implementation of 4, 5, and 9, while simultaneously working toward both the superficial administrative policy changes suggested in numbers 6, 7, and 8, and the eventual implementation of long-term policy goals 1, 2, and 3.

A Survey of Specific Solutions

This section briefly examines examples of three different kinds of approaches to addressing The Co-Occurring Disorder Dilemma: 1) a broadly applicable and assertive social institutional approach (Medical-Legal Partnership), 2) a managed care-level administrative approach (Expanded BHO Contract), and 3) a flexible and accommodating provider-level administrative approach (The Medical Home Model). These three approaches are not mutually exclusive; they can be combined in part or in whole to form a comprehensive strategy for addressing The Co-Occurring Disorder Dilemma.

Medical-Legal Partnership: Medical-Legal Partnerships (MLPs) involve integrating lawyers into the health care team available to clients, to address the non-medical factors affecting their health. As The National Center for Medical-Legal Partnership (NCMLP) puts it:

Medical-legal partnership (MLP) is a new patient care model that aims to improve the health and well-being of vulnerable individuals, children and families by integrating legal assistance into the medical setting. MLPs address social determinants of health and seek to eliminate barriers to healthcare in order to help vulnerable populations meet their basic needs and stay healthy.4

One form of MLP is the inclusion of lawyers on a health care provider team to address exacerbating conditions that health care providers are neither qualified nor empowered to address, such as mold-infested housing aggravating the condition of an asthmatic child, or lack of food and heat creating health risks that cannot be resolved through medical treatments alone. In a sense, this is another reduction of “siloing,” such that the various kinds of circumstances that combine to create or exacerbate medical problems can be addressed in tandem with the medical treatment itself.

More generally, a Medical-Legal Partnership is the combination of advocacy and medical treatment, so that patients’ rights are protected in service to the provision of adequate health care that is not divorced from the broader social institutional context in which it occurs. As the above quote from the NCMLP website illustrates, such legal advocacy integrated into the “medical setting” could serve a vital role in placing sustained pressure on Colorado Medicaid’s administrative apparatus to address and resolve the structural defects that result in The Co-Occurring Disorder Dilemma. More broadly, the establishment of Medical-Legal Partnerships throughout Colorado’s health care system would provide institutionally integrated patient advocacy to address all such problems as they arise.

In the present context, a Medical-Legal Partnership would involve an alliance of behavioral health care providers and legal advocates working together to ensure that their clients receive the full range of behavioral health care services to which they are legally entitled, and to ensure that the services received are accessible, coordinated, and appropriate.

Expanded BHO Contract: One possible solution to the difficulties faced by families of multiple diagnosis children, favored by the Colorado Behavioral Healthcare Council (CBHC, the umbrella organization for the BHOs), would be to expand the state’s contract with the BHOs to include in their mandate responsibility and compensation for providing all covered services for all covered behaviorally related diagnoses, whether currently categorized as mental illness or in some other way (such as a by-product of a developmental disability). Another, similar solution would involve authorizing and equipping BHOs and CMHCs to provide all behavioral services, some covered by capitated Medicaid, and some charged to fee-for-service Medicaid, according to their billing codes. These solutions would address some of the factors contributing to the current systemic deficiency, but would leave many of the other contributing factors intact. As such, they are, at best, partial solutions.

Some advocates are concerned that these solutions would merely perpetuate the problem in a new guise, since the BHOs, intended as cost reducing intermediaries, are incentivized to deny services whenever possible. This may be a legitimate concern, but, when coupled with the Medical-Legal Partnership approach described above, the added vigilance thus provided might help to mitigate and counterbalance any overzealousness to deny services on the BHOs’ and CMHCs’ part. This combination might be a robust way to institutionalize, as a permanent feature of the Medicaid behavioral health landscape, a vehicle for negotiating the inherent tension between efficiency (i.e., cost-cutting) and protection of patients’ rights.

Medical Home Model: The Medical Home Model (sometimes called “patient-centered medical home,” or PCMH) involves a centrally coordinated, continuous and comprehensive system of care led by a primary care physician. Intercept Center (described above) incorporates some elements of the Medical Home Model, in which the program director coordinates with other service providers to deliver coordinated and comprehensive care (and educational services) to children in the program. As discussed above, using Intercept Center as an example, the Medical Home Model is most adept at addressing issues 4, 5, and 9 (cross-training of service providers, coordination and integration of services, and better assistance to clients in navigating the system). The Medical Home Model is often considered the best way to keep children with mental illnesses, developmental disabilities, and Autism Spectrum Disorder in the least restrictive environment, and provided with the most comprehensive and appropriate treatment plan.

In the context of reducing the effects of siloing in Colorado Medicaid’s delivery of behavioral health services, the Medical Home is a potentially essential partner to higher level solutions. If, for example, the BHOs’ contract were to be broadened to include management of care for all behaviorally related conditions, the Medical Home would be the ideal vehicle for coordinating and integrating that care. Thus, in one possible integration of these three approaches, the Medical-Legal Partnership could hold the BHOs accountable, while the Medical Home could implement their comprehensive mandate on the ground.

Conclusion

A combination of inherent financial incentives, excessive discretionary power by independent contractors, inadequate oversight, inadequately trained personnel, and inadequate availability of mandatory services helps to produce the gap in services experienced by children and adolescents with multiple mental health and developmental disability (or other “medical”) diagnoses. An administrative structure comprised of siloing in multiple, interacting ways (in terms of diagnoses, treatments, providers, and billing) obstructs rather than facilitates the coordination of services. And a lack of resolve among responsible agencies has left this problem largely unaddressed.

Previous attempts to close this and related gaps have proven insufficient. Protocols for clients with co-occurring DD and MI diagnoses, and co-occurring TBI and MI diagnoses, have done little to solve the problem. The Child Mental Health Treatment Act (CMHTA, or “HB 1116”), designed to provide access to residential treatment services without recourse to Social Services (which generally requires a Dependency and Neglect action, exposing parents to the risk of losing custody of their children in order to access vital services), has too often simply been disregarded or misunderstood. General awareness of the Co-Occurring Disorder Dilemma is widespread among advocates, affected clients, and individual service providers, but sustained pressure to resolve it has not yet been applied.

This difficulty in accessing necessary services, sometimes essential to the safety of the affected child and others in the child’s household, imposes an onerous burden on families already overburdened with the challenges of caring for children with multiple mental health and developmental problems. Solutions exist and can be implemented, ranging from the local and partial to the systemic and far-reaching. It is incumbent on all stakeholders to do their part to ensure that these solutions are implemented.

Methodology

The research for this report consists primarily of meetings and conversations with 1) parents who have had difficulties accessing mental health services for their multiple diagnosis children; 2) professional advocates for those with mental illnesses and developmental disabilities (frequently also parents of mentally ill or developmentally disabled children); 3) the executive director of an advocacy organization for adoptive families (adoptive families being disproportionately impacted by this problem); 4) Mental Health program directors and service providers; and 5) governmental agency officials and contractors.

Among the governmental agency officials, nonprofit executive directors, advocates and service providers I interviewed, met with, or corresponded with in the course of researching this issue are Marceil Case (HCPF Mental Health Specialist), George DelGrosso (Executive Director of CMHC), Brian Turner (CMHC), Janine Vincent (Ombudsman for Colorado Medicaid Managed Care), Julie Reiskin (Executive Director of Colorado Cross-Disabilities Coalition), Mary Ann Harvey (Executive Director of The Legal Center), Pat Doyle (Rights Advocate at The Legal Center), Deborah Cave (Executive Director of Colorado Coalition of Adoptive Families), KimNichelle Rivera (Outreach/Research Coordinator for Empower Colorado), Judy Reaven (Clinical Psychologist and Director of the Autism and Developmental Disabilities Clinic at JFK Partners, an interdepartmental program of Pediatrics and Psychiatry at University of Colorado School of Medicine), Cordelia Robinson (Director of JFK Partners), Betty Lehman (then Executive Director, Autism Society of Colorado), Marianne Wamboldt (Chair of the Department of Psychiatry and Behavioral Sciences at Children’s Hospital), Brian Tallant (Program Director, Intercept Center, Aurora Mental Health Center), and Sarah McNamee (Early Intervention Service Provider, LCSW).

Among the documents I reviewed while preparing this report are the BHO Contract with the State of Colorado; the Ombudsman’s reports for 2009-2011; the written criteria for BHOs to follow in the treatment of co-occurring mental health diagnoses and traumatic brain injuries; the written criteria for BHOs to follow in the treatment of co-occurring mental health diagnoses and developmental disabilities; a 2009 Primer on the mental health safety net published by the Colorado Health Institute; a 2011 updated report by The Mental Health Funders Collaborative on “The Status of Mental Health Care in Colorado;” a 2004 Urban Institute report on “Access to Children’s Mental Health Services under Medicaid and SCHIP;” a 2008 Department of Health and Human Services Inspector General “Review of Colorado Medicaid Mental Health Capitation and Managed Care Program;” a 2009 DBH and WICHE Mental Health Program “Population in Need” study; a 2008 report commissioned by HCPF on “Colorado’s Medicaid Mental Health Services Program: Issues & Future Direction;” “The Maze,” a 2009 report by Colorado Covering Kids and Families on barriers to access to Medicaid and CHP+ faced by eligible children and families, with a recommendation for streamlined access; some working papers on the clinical issues involved; and various provider and advocacy group newsletters.

Requests for both qualitative and quantitative data regarding the Co-Occurring Disorder Dilemma were made to the Colorado Department of Health Care Policy and Financing (HCPF, the single agency which oversees the Colorado Medicaid program), the Colorado Ombudsman for Medicaid Managed Care, various advocacy groups, and the five Behavioral Health Organizations.

With the exception of the five Behavioral Health Organizations (BHOs) themselves, no one was able to provide any hard data on the prevalence of The Co-Occurring Disorder Dilemma. The various advocacy groups contacted were unable to provide any relevant data other than the shared impression that The Co-Occurring Disorder Dilemma is a pervasive problem. HCPF, in response to a CORA request, provided raw grievance and appeals reports which contained no information relevant to the issue at hand. The Ombudsman did not follow up on an offer to send me relevant data.

With the assistance of George DelGrosso and Brian Turner of the Colorado Behavioral Healthcare Council (CBHC), four of the five BHOs contracted by the state as managed care providers for Colorado Medicaid supplied me with data summarizing the reasons for all of their formal denials, resulting in a Notice of Action (NOA), over the last fiscal year and the first half of the current fiscal year, to child and adolescent Medicaid clients with multiple diagnoses. (Access Behavioral Care, the fifth, provided only the raw number of denials -25- for the 18 month period reported on, and no other information. I was assured that this was due to technical difficulties and not a desire to withhold the information. The CEO of ABC, Rob Bremer, conveyed his willingness, through Brian Turner of CBHC, to work with me one-on-one to fill in that information if I so desired.)

1 For the remainder of the paper, “child” and “children” includes infants through adolescents, until age 21.

2 For the BHO contract and exhibits, see http://www.colorado.gov/cs/Satellite?c=Page&childpagename=HCPF%2FHCPFLayout&cid=1251568046976&pagename=HCPFWrapper.

3 Quotes are taken from the ALJ decision reversing the BHO’s denial of residential services.

4 http://www.medical-legalpartnership.org/

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I’ve frequently encountered the argument that any reference to the legacy of history, to continuing evidence of a racially differentiated distribution of wealth and opportunity, is irrelevant because: 1) “I’ve never owned any slaves;” 2) everyone has the opportunity to succeed in America today, and it’s entirely the fault of those who don’t succeed if they fail to take advantage of that opportunity; and 3) the statistical trends are a result of sub-cultural problems that are the fault of the people who are suffering from them. All three of these rationalizations contain errors that are easily demonstrated.

One commenter insisted that the past is remote and irrelevant, that it is full of discredited ideas and so why should we turn to it to understand anything about the present or future? My answer was that disredited past ideas and well-evidenced past realities are two distinct things, that I am not arguing that we should be bound by past beliefs —far from it— but rather that we should be informed, in part, by past realities.

I do not oppose developing state-of-the-art new ideas and insights. Indeed, that’s what I live for. I’m a student of the ever-evolving explosion of human consciousness and its products. But those are all part of a historical process. They do not just exist in the present; they emanate from the past.

Even aside from the persistence of racist attitudes, of actual prejudice and discrimination (which are far more prevalent than some are willing to admit), there are other mechanisms by which past prejudice and discrimination continue to have present consequences. Children inherit from their parents a variety of legacies which are differentiated by history, passed down through the generations, legacies which include material wealth, social and institutional connections and privileges, and habits of thought and action adapted to and conducive to the social and material context of previous generations. Those who inherit more material wealth, richer social and institutional connections and privileges (such as ivy school “legacies,” in which the children of alumni receive preferential treatment in admissions considerations), and are socialized into the patterns of thought and action incubated in and conducive to socio-economic success, are clearly advantaged over those who inherit less material wealth, poorer social and institutional connections and privileges, and are socialized into patterns of thought and action adapted to and reproductive of relative poverty.

Paradigms persist even when we are no longer invested in their persistence. It is not enough to eradicate racist laws, or even racists attitudes, to eradicate the effects of racism. It requires a social investment, based on a recognition of a social responsibility.

There is an economic concept called “path dependence,” which refers to the tendency to remain in sub-optimal paradigms due to the up-front costs of paradigm shifts. For example, if there is new physical plant that produces something far more efficiently than what had heretofore been used, any calculation of the benefits of replacing the old with the new includes the huge up-front costs involved, and, even if there are huge long-term benefits to be gained, if the up-front costs are onerous enough, those benefits might never be pursued.

This can take many forms, from changing physical plant, to changing forms of government or economic systems, to changing understandings of reality. All of these confront various kinds of path-dependent resistance.

Here’s a very simple (and trivial) example: The “QWERTY” computer keyboard arrangement (named for the first five letters, from upper left, on the computer keyboard). If, for some purpose, someone needed to know why computer keyboards, in the present, are arranged that way, they would not be able to discover the answer by limiting themselves to consideration of present reasons why it might be so. The reason, rather, lies in the past: It minimized the jamming of mechanical typewriter hammers. It is a present reality, determined by past circumstances.

There are limitless other examples, in limitless arenas: The human spine has its shape because we evolved from walking hunched over (from four-legged, going further back), to standing upright. The spine wasn’t designed from scratch, but rather took its form from successive developments that built on previous conditions. And it is a sub-optimal design, leading to a lower back that is weaker than structurally necessary. The past is present in the present.

The notion that meeting current and future challenges requires thinking in the present and in no way benefits from understanding the past relies on a false dichotomy: Acting in the present and understanding the past are not incompatible, and, in fact, to do the former well, you have to include the latter in your approach.

Those “vague events of the past that really have no bearing” (as one commenter put it) are not so vague, and not so irrelevant. Such assertions conveniently ignore the statistical fact that the two most historically oppressed racial groups in American history, African Americans and Native Americans, are far more represented among our impoverished than random chance would allow. Why? Surely those who deny the relevance of this fact aren’t explicitly arguing that those racial minorities just happen to have an excessive amount of non-meritorious people among them, that they are “inferior” races. But it’s hard to see how their argument can be based on anything other than an implicit assumption to that effect.

The argument that members of those races have individually failed to take advantage of the opportunities available to them doesn’t address the statistical reality that so many more individuals from those races have failed in this way than individuals in the race that historically oppressed them. What a coincidence that the descendants of those who were enslaved and conquered are, on average, so much “less meritorious” than the descendants of those who enslaved and conquered them. Just highly improbable random chance, no doubt, and in no way involving those vague and irrelevant facts of history.

And the argument that it is a subcultural phenomenon begs the question: Why these subcultures and not others? Will those arguing this position really stand by the claim that it’s just a coincidence that the subcultures burdened with these problems just happen to encompass the populations we massacred, enslaved, and oppressed for centuries? Or will they admit that, to the extent that a mediating cause of social problems borne by these populations is subcultural in nature, the development of such subcultural dysfunction has as a first cause the centuries of oppression in which it was incubated?

The argument that some once disadvantaged ethnic groups have prospered, so why don’t these, doesn’t cut it either: There are many variables in play, and they lead to a wide variety of outcomes. Two major factors come into play: 1) No other disadvantaged population was ever quite so extremely and enduringly disadvantaged as the two I’ve named, and 2) the fact that there are circumstances in which countervailing factors overcome the liabilities of prejudice and discrimination doesn’t negate the existence and salience of prejudice and discrimination. In the case of generally new waves of exploited and impoverished immigrant groups who then prosper later, combinations of economic factors, less entrenched discrimination, and cultural characteristics particularly conducive to success can all come into play.

Just as some formerly underprivileged groups prosper, so do some individuals from underprivileged backgrounds, not because all is well and everyone has an equal chance, but because other factors intervene to counterbalance the injustices that really do exist. An individual might have gotten lucky by having exceptional talents, or exceptional mentors, or other bits and pieces of countervailing good luck.

But these bits of greater good fortune overwhelming an unjust situation don’t excuse the perpetuation of the unjust situation. There were slaves that escaped and prospered as well; that doesn’t mean that slavery was just fine, because, after all, some born into it prospered. The injustice isn’t erased by some fraction of those who escape it. And the fact that our current distribution of wealth and opportunity is unjust is conclusively proven by statistically significant differences in average outcomes for large populations on the basis of race, ethnicity, or gender.

The purpose of understanding the past isn’t to change the past, or to apportion blame, or to cultivate a sense of guilt and a sense of victimhood, or to suggest that descendants of victims of injustices necessarily deserve reparations beyond a commitment to erasing the legacy of those injustices, or to suggest that any inequality itself is unacceptable. The ultimate goal isn’t to recognize the role of history in forming the present, but rather to mobilize that knowledge in service to humanity today and tomorrow.

Who cares why the keyboard is as it is, or the human spine is as it is, or the inequitable distribution of opportunity in America is as it is, unless there is some present use for that knowledge? In the former two, there really isn’t, because we are willing (or have no choice but to) accept the current state, and so how it became so is of little practical relevance. But, if there were a question of fundamental justice involved, of human rights and human dignity, then it would be relevant, as it is in the last mentioned case.

Letters on a keyboard aren’t conscious and don’t care where they’re located. Human beings are, and do. The “QWERTY” of the distribution of wealth and opportunity has a relevance that the “QWERTY” of the location of keys on a keyboard doesn’t. And the relevance of the history that created that distribution of wealth and opportunity is that it exists, that the injustices of history have not been erased by time, that they are still embedded in the chances of birth. A commitment to our most basic values compels us to face that fact and deal with it responsibly, rather than deny it and pretend that each person fares only according to his or her own merit and effort, despite the overwhelming evidence that that just isn’t so.

It is not merely, or even primarily, to demonstrate the relevance of past racial discrimination to current inequitable distributions of wealth and opportunity that we should be informed by this presence of history, but rather to demonstrate the existence of social and economic injustice itself. I might be inclined to argue that those who are impoverished in America, or struggling in circumstances characterized by poorer than average opportunities to thrive, regardless of their race, are by-and-large victims of ill-fortunes that were not their own making, and did not enjoy a true equality of opportunity such as we, as a people, should be striving to realize. I might be inclined to argue that our policies for addressing these injustices shouldn’t be racially targeted, or race-conscious, but rather address the problems themselves that are disproportionately borne by members of some formerly oppressed races, and by doing so address the injustices at their root, as they occur, rather than superficially by the categories in which they most prevalently occur.

But the people who deny that the injustices of the past have any relevance to the injustices of the present are doing so to argue that there are no injustices in the present, or at least no injustices of a kind that incur any social responsibility borne by us collectively as a people and a nation. They argue that those who are poor are poor because they lack merit, lack resolve, lack something that those others who are not poor have, in complete defiance of the evidence.

The number one predictor of future wealth is the wealth into which one is born: If you are born into a wealthy family, you are likely to become a wealthy adult; if you are born into a poor family, you are likely to become a poor adult. There is far less social mobility than our mythology pretends (indeed, less even than in the more liberal countries of Western Europe). When one’s fate is largely determined by the socioeconomic class into which they are born, there is less difference, in terms of social justice, between our current political economy, and the more unabashedly inequitable systems of the past. Obviously, the ideal of equality of opportunity is far from being a reality in this country.

One of the fundamental challenges facing us as a people is to recognize this, and continue to strive to remedy it. In America, too many people hide behind a political philosophy that allows them to “have their cake and eat it too,” to enjoy the benefits of living in a society without undertaking any of the moral responsibilities that that incurs (see The Catastrophic Marriage of Extreme Individualism and Ultra-Nationalism  for a discussion of a different aspect of this overly-convenient and pernicious blend of individualism and nationalism). It is time we once again heeded John Donne’s famous admonition that

No man is an island entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as a manor of thy friends or of thine own were; any man’s death diminishes me, because I am involved in mankind. And therefore never send to know for whom the bell tolls; it tolls for thee.

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Our nation is embroiled in the fall-out from a tragedy brewed from familiar ingredients. Once again, an innocent child is dead, a victim of some undetermined blend of cowboy conservativism, racism, and laws which weaken the state’s crucial monopoly on the legitimate use of deadly force.

There is no shortage of lessons to be learned from the murder of Trayvon Martin, an innocent and unarmed black teen walking home from the store, the culprit protected by a Florida law that effectively legalizes murder, as long as the perpetrator thought the person he was murdering might be a criminal (letting each be the police, prosecutor, judge, jury, and executioner, all on their own. So much for “due process…”). To those who insist that they are not racists because racism is dead, it isn’t, and some of you are. To those who insist that liberty and justice require decentralizing the legal right to –and discretionary judgment as to when to– use deadly violence, you are liberating only human folly, and doing so at the cost of innocent others’ most fundamental of rights, the right to life.

The far right insists that if we, as a polity, try to take care of one another through our agent, the state, it is the most antagonistic thing imaginable to individual liberty, but that being able to kill an innocent teen, because he has dark skin and wears a hoodie, in response to some racist impulse, is the most necessary thing imaginable to that same liberty. If that were what the word “liberty” really meant, then it would be an odious thing. But it isn’t, neither what it means nor what it is.

“Liberty” is the freedom to speak your mind, believe and express those beliefs, organize, assemble, aspire, innovate, prosper, and thrive. It is not the freedom to harm others, to hurl our nation into a Hobbesian paradise of a “war of all against all,” in which life is “nasty, brutish, and short.” It is not the freedom to kill an unarmed teen because he’s black and wears a hoodie. It’s not even the freedom to be left to make that choice, each using his or her own judgment whether this or that individual deserves to be killed, in any circumstance other than truly imminent necessity of the defense of self or others.

That we have an ideology reverberating through large swathes of our collective consciousness that ever was foolish enough to blurr that bright line is proof enough that something is horribly amiss, and we are in urgent need of correcting it.

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(The following was in response to a right-wing poster who had “steam coming out of [her] ears” over some left-wing commentator suggesting that “conservative values” was code for racism. She ended by saying that “we have to take back this country, or we are screwed!”)

You’re right Susan: “Conservative values” isn’t code for racism; “taking back this country” is.

The United States was born with slavery, fought a Civil War to get rid of it (against people who adhered to a very strong “states’ rights” political philosophy, much like a certain political faction of today), then endured another century of Jim Crow, which was abolished in a Civil Rights Movement confronting a new version of that extreme “states’ rights” perspective (much like a certain political faction of today), and has since fought an uphill battle to address the social injustices that remain embedded in our political economy, against a faction which clings to a strong “states’ rights” philosophy.

Or is it “liberty”? A great antebellum statesman wrote a tome called “Union and Liberty,” about the threat of federal tyranny to the liberty of minorities. His name was John C. Calhoun, the minority he was concerned about was southern slave owners, and the “liberty” that was being threatened was their liberty to own slaves. There’s a long tradition in America of using the word “liberty” to mean preserving the advantages of the few at the expense of the many.

You doubt that that’s what today’s use of the word means? Do you know the two peaks in the last century of the concentration of wealth, the inequitable distribution of wealth and opportunity? I’ll give you a hint: Both dates are notable for being immediately followed by the two largest, catastrophic economic collapses of the last century. And both dates are also notable for following a decade or two of the ascendance of a notion of “liberty” which favored unregulated, unchecked, predatory redistribution of wealth from the middle class to the extremely wealthy. Those two dates are 1929 and 2008.

And from whom, exactly, are you “taking the country back”? Blacks (except for the few who have become exactly like you)? Hispanics? Gays? Muslims? I see conservative threads insisting that every act of Sharia law somewhere in the world, or every court respecting the free exercise clause of the United States Constitution (which conservatives revere by crapping all over), is proof that we’re being taken over by it. And the uber-lame argument is that Islam isn’t REALLY a religion, but rather a plot for world conquest, which distinguishes it from Christianity by being spelled with fewer and different letters.

Probably the most infamous racist movement in 20th Century world history was one in which a whole country spiralled down into a belligerent hysteria over a group perceived to be “foreigners” living among them, who needed to be rounded up, detained in unpleasant detention centers, and removed, in order to preserve the purity of the nation. And it’s also well on its way to being an infamous racist movement of the 21st century, across an ocean and among people who take offense at being called “racist.”

Yeah, you keep right on “taking the country back,” because we sure don’t want it stolen by all of those “others.” Right?

Yeah, I get it. You mean “take it back” from the “socialists.” The people who helped ensure that the United States Constitution empowered Congress to tax and spend in the General Welfare (you know, the Founding Fathers?). The people who 80 years ago started to put into place the administrative structure and welfare state that has formed a part of the foundation of every single country that partook of the post-WWII explosion in prosperity. The people who passed an overdue Civil Rights Act that established that “liberty” and “property” don’t mean the right to discriminate against people on the basis of their race (a law that Rand Paul said he wouldn’t have been able to support). You want to take America back from the Americans who founded it, who fought for it, who have molded it, and who are it. That’s not “taking it back.” That’s just “taking it.” And we’re not going to let you.

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As the Denver Post noted in two columns in today’s (Sunday, 3.18.12) Perspective section (http://www.denverpost.com/opinion/ci_20183851/are-college-students-learning-holding-higher-education-higher and http://www.denverpost.com/opinion/ci_20183853/holding-higher-education-higher-standard), the value of a college education suffers from the lack of emphasis on the teaching ability of college professors. The fact is, universities hire and retain professors on the basis of their research and writing skills and efforts (“publish or perish”), rather than on the basis of their teaching skills and efforts. “Teaching colleges” are an exception to this rule, focused on teaching rather than research, but perhaps lose something in the bargain as well. Arguably, immersing young people in an evironment that is home to the most brilliant minds in the world, laden with cutting edge insights and the highest levels of cognitive activity, has a benefit not to be lightly dismissed. But the transmission of that brilliance to the students who fill the lecture halls needs to be accomplished in a manner a bit more intentional than mere osmosis. If we want our young adults to receive a high quality college education, we need to ensure that there is a system in place designed to deliver it.

American universities not only fail in the degree to which they ensure that they are effective educational (as well as research) institutions, but also in the degree to which the highly specialized enclaves of cutting-edge thought cross-fertilize one another. Careers are built on complete immersion in very narrowly defined and information-intensive academic microcosms. There are many benefits to this, but some costs as well. We have conceptually fractured reality into its tiniest components, but have done little to conceptually reassemble it. This affects not only the breadth and depth and quality of the insights achieved through this process, but also increases the distance between professors and students, turning too many professors, as Ms. Bullard noted in her collumn in The Denver Post, into “a disheveled man…mumbling half to himself.”

It’s tempting to capture these dual challenges with pithy oversimplification, stating that the remedy to these two problems is more specialization along the teaching/research continuum, and less specialization among the various content areas. Unfortunately, though I like the simplicity and balance of that statement, it fails to capture the reality of what I am proposing: I am really suggesting that we build more and better bridges, and more fully develop the regions that form their destinations.

We need a new emphasis on the specialization of teaching, but not a specialization which is completely detached from the academic vibrancy and richness that is the modern university. One way to accomplish this might be to hire teachers to teach, and research professors to do research, and to allow the two groups to overlap and articulate with one another both organically and by design. Those brilliant professors who are great researchers but lousy teachers can spend all of their time doing research. Those who are both great teachers and great researchers can spend some of their time on both, as is currently the case, but with a more balanced emphasis and more balanced rewards for excellence in each endeavor. Those who are great teachers but not particularly talented researchers, or not particularly interested in doing research, can be hired on exclusively as teachers.

It would be a professional expectation of all university teachers that they demonstrate the highest levels of expertise in their field, completely comparable to those of their research counterparts, and to be fully versed in what their colleagues are doing, including their colleagues who are engaged only in research. But it would also be a professional expectation that they become broadly, as well as deeply, educated, that they are aware of developments in other disciplines, even completely unrelated disciplines (“unrelated,” that is, by conventional modes of thinking).

Part of what professors specializing more in teaching could bring to modern universities is more cross-fertilization, more bridges among disciplines, helping students to learn not just the discipline that defines the primary class material, but also the connections between that discipline and others, between its insights and insights being developed in very different subject areas.

But teachers need to teach one another as well as those students who are seated in the classrooms and lecture halls. And research professors would benefit from more catalysts to the imagination and to the processes of inspiration and insight coming from other, sometimes very different disciplines. So I would add one more layer of innovation to our universities: A “Department of Interdisciplinary Synthesis.”

While we do not want to lose the benefits of the intense specialization which is so robustly producing such finely tuned and precise insights into the nature of the world and universe we occupy, we should seek to gain the further benefits of how these insights articulate with one another, form surprising areas of interdisciplinary coherence, generate surprisingly robust and useful understandings that not only cross disciplinary boundaries, but leap across disciplinary spaces that have heretofore been considered as wide a gulf as that between galaxies.

One basis for such interdisciplinary synthesis is Complex Dynamical Systems Analysis (what is often thought of as “Chaos Theory”). Rather than a focus based on subject area, it is a focus based on the choice of lens through which to understand subject areas. Complex Dynamical Systems Analysis has applications throughout all of the social sciences (see, e.g., my series of essays in the first box at Catalogue of Selected Posts), physics, biology and the life sciences, meteorology, philosophy, literature, and the fine arts (including music and visual arts), to name a few. It is, in a sense, a naturally-occurring cross-fertilizing cognitive enzyme.

Other such “enzymes” undoubtedly exist as well. Discovering and utilizing them would be a very valuable academic enterprise, one which currently occurs mostly on the margins of ultra-specialization rather than in the center of an effort to build bridges among those islands of thought. We live not only in a mind-bogglingly complex and subtle reality, the understanding of which benefits from extreme specialization, but also a coherent reality, the understanding of which benefits from synthesizing the products that extreme specialization. And the challenge is not only to produce and synthesize these products of human genius, but also to disseminate them, and allow them to extend more broadly into the population and to articulate more thoroughly with the genius of the many.

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The one constant is change, but the speed and utility of change is not constant at all. Organizations emerge for the purpose of fomenting change, yet, as a general rule, they soon ossify in the same kinds of unimaginative patterns as the institutions they are seeking to affect. Significant change through the medium of established organizations and institutions is generally catalyzed by either those who are raised to positions of influence despite their failure to satisfy conventional check lists of appropriate qualifications, or those who act in ways not predicted by the fact that they satisfy conventional check lists of appropriate qualifications.

Human actions fall within a space one axis of which is defined by courageous and imaginative choices striving for excellence at one extreme, and conventional choices striving for mediocrity or maintaining the status quo at the other. That axis alone does not describe the quality or efficacy of individual actions: Courageous and imaginative choices striving for excellence that are made in service to an odious ideology, or that are in some other way misinformed, may well do more harm than good, whereas conventional choices striving for mediocrity may make valuable marginal contributions to human welfare. But, while caution, analytical sophistication, foresightedness and respect for uncertainty, and subtlety of insight and strategy are necessary variables to render courageous and creative innovation a positive rather than negative force, the absence of courageous and creative innovation guarantees suboptimal outcomes.

Several recent experiences have raised this to the fore of my mind: A program director position for an educational reform foundation that I applied for, and would have done a truly exceptional job in, that I failed to get because an unimaginative vice president was looking for candidates that satisfied the more superficial and easily acquired criteria for the job rather than the more profound and harder to duplicate criteria of greater importance; other nonprofit positions filled by decision makers similarly focused on superficial and less salient criteria; an alternative school led by a robust and idealistic principal who may prove to be an exception to this “rule;” a widespread insistence, across the ideological spectrum, to cling to conventional modes of thought and conventional strategies and conceptualizations of political activism, rather than to reach down a bit deeper and attempt to foment truly fundamental change instead.

The most profound lesson of human history is the robustness of social change, the degree to which that which is taken for granted as a permanent feature of our consciousness and our social institutional landscape is truly ephemeral, and can and does change far more rapidly and dramatically than those living in their own time and place are wont to realize. It is true, of course (as discussed in The Variable Malleability of Reality) that some things are easier to change than others; that smart strategies identify what aspects of our current reality are more malleable in order to massage our encompassing social (and natural) systems in ways which move us in desired directions. But it is also true (as discussed inThe Algorithms of Complexity) that that layered complexity, in which deeper levels are generally less malleable than more superficial ones,  provides frequent opportunities for rapid, dramatic change, when some of the underlying “algorithms” are actually fairly malleable. The art and science of participating in history in socially responsible and “ambitious” ways involves recognizing and reconciling these two aspects of the challenge at hand.

It’s time for a new social movement that confronts this challenge head-on, and does so with a commitment to doing so as rationally and imaginatively and compassionately as possible. I’ve outlined one general proposal for organizing such a movement in A Proposal: The Politics of Reason and Goodwill and in the other essays linked to in the second box at Catalogue of Selected Posts. (In the first box at Catalogue of Selected Posts can be found essays exploring the nature of our social institutional and technological landscape, to better inform such efforts; and in some other boxes can be found specific applications and aspects of this analysis.)

The proposal has three components: 1) Non-partisan community organizations whose members agree to commit only to reason and universal goodwill, to listening to competing views, and to seeking the policies which best serve humanity; 2) A data base or internet portal making access to all arguments that are framed as analyses applying reason to evidence in service to human welfare, and that provide documentation for all factual evidence relied on, upon which such community organizations can draw for their discussions and debates; and 3) Something I call “meta-messaging” (see Meta-messaging with Frames and Narratives): The emotionally and cognitively effective dissemination of the narrative that this is a good and worthy project, that it is good for individuals and good for society to view our shared existence as a shared existence with shared challenges and shared opportunities, that, as I like to put it, it’s better to be Ebenezer Scrooge after his adventure with Marley and the Three Spirits than before.

Such a movement depends on suspending substantive debates until they can be contextualized in the framework being advocated, because to do so would be to lose what cross-cutting appeal such a movement might have. While there are many who would never join such a movement, and never join the community organizations that are a part of it, there are many who would, including many who identify themselves as “conservatives” or “independents.”

This is not, and cannot be, a movement to overturn Citizens United, or a movement to increase public spending on social services and education, or a movement to achieve preconceived substantive goals of any kind, because to allow it to become so would be to defeat its purpose: To find and develop the one common ground all people who wish to be reasonable people of goodwill can agree on, and that is that we all strive to be reasonable people of goodwill, humble enough to know that we don’t know all of the answers, wise enough to engage in a public discourse devoted to doing the best we can, and disciplined enough to develop new procedures and new institutions that help us to work together as reasonable people of goodwill confronting the challenges of a complex and subtle world.

What we need more fundamentally and more critically than to achieve any of the individual, ideologically saturated substantive goals that divide us is to rediscover and develop our common ground, the underlying values and aspirations that most of us share, and the procedurally and attitudinally focused framework that we can create to pursue them more constructively and cooperatively. There are many people in America who are sick of the divisive, angry, excessively intransigent political rhetoric which dominates our public forums and airwaves, who would flock to a movement that steps back from that and tries, instead, to establish another kind of public discourse, another kind of political participation. This is a movement to bring them in, and move us forward.

That means letting go of the rituals of warring false certainties, and coming together instead around a common acknowledgement of shared uncertainty and fallibility. It’s time for all who are willing to make that leap of daring idealism, of courageous commitment to doing better, of believing in our humanity, to do so. We can continue to reproduce the unimaginative and unproductive ritual of over-confident warring false certainties, or to work together to create something new and vibrant and potentially revolutionary. As always, we each get to choose how daring and imaginative and conscious, and therefore how effective, our commitment to progress really is.

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Of all of the issues and challenges that face us as a society, our abysmal public education system is foremost among them. It’s not hard to identify the reasons for this failure: An archaic paradigm designed for another age and informed by a dehumanized assembly-line model that processes rather than inspires and mentors children; a ritualistic commitment to going through the motions rather than achieving excellent outcomes; a Kabuki Theater of faddish or merely time-wasting professional development and “sensitivity” trainings and purposeless faculty meetings; school improvement plans invested in and abandoned; an overwhelming administrative imperative of avoiding problems that constantly displaces any commitment to educational excellence; overpoliticized school district administrative and governance structures, focused more on ideological and power-consolidating maneuvering than on educating children; an anti-intellectual surrounding culture; a political zeitgeist emphasizing superficial and mechanistic “school reform” ideas which deepen rather than transcend the dysfunctional status quo and kick responsibility down the hierarchy toward those least able to address the structural problems involved; and the same political zeitgeist vilifying government (which school districts are) and starving them of much needed authentic public support. It’s a recipe for continuing and deepening failure.

What’s less obvious is how thoroughly within reach turning this around really is, how capable we are of transforming our public education system from one of the worst among developed nations to the very best in the world, bar none. We lack neither the human ingenuity nor material capital for doing so. Our children are in no way inherently less able to learn than the children of any other society. The challenge of inspiring and guiding and mentoring and educating our children from infancy through adulthood, and of thus liberating the genius of our populace to enable each to thrive individually and all to thrive collectively, is both the most critical and most tractable challenge we face as a society. (See Education Policy Ideas, Real Education Reform , Mistaken Locus of Education Reform, School Vouchers, Pros & Cons for some of my musings on education policy and education reform, and The Vital Role of Child, Family, and Community Services for a discussion of the related issues involving the social institutional and social emotional context that are students are embedded in.)

Human consciousness is the spark of divinity we carry within us, that magical, marvelous wonder that allows us to explore the universe with our minds, both the macrocosms and microcosms,  from the farthest galaxies and most distant times, to the tiny particles dancing into and out of existence and our own elusive inner-selves. It is a captive giant, whose freedom is both the ends and the means of all other human endeavors. It is a tool for our prosperity and spiritual fulfilment, and a source of profound joy in and of itself, the font of our stories, of our arts, of our humor, of our scholarship, of our appreciation and celebration of the world of which we are a part. It is the essence of being human. (See The Politics of Consciousness , Adaptation & Social Systemic Fluidity, The Evolutionary Ecology of Social Institutions, The Fractal Geometry of Social Change, The Evolutionary Ecology of Human Technology, The Fractal Geometry of Law (and Government), Emotional Contagion, Bellerophon’s Ascent: The Mutating Memes (and “Emes”) of Human History, Information and Energy: Past, Present, and Future for some discussions of the relationship between human consciousness and our social institutional and technological landscape.)

This is why I become so excited when I see those too few but so inspiring genuine attempts to realize our potential, to educate our children in the truest sense of the word, to commit ourselves not in some superficial or mechanistic way, but heart and soul, using all of our passion and talent as educators, all of the information and experience available, all of the tools that have been developed and ideas that are now emerging, thinking, imagining, innovating, designing, refining, implementing, improving, refining, modifying, constantly and tenaciously, making it happen.

West Generation Academy is just such a venture, led by a passionate and inspiring principal, imbued with vision and imagination and discipline and commitment, poised to make a dramatic difference both directly and indirectly in the lives of untold numbers of children, and of our society as a whole. Like a butterfly flapping its wings in the turbulent atmosphere, what reverberating ripples it will send out into the suchness are yet to be known. If the school achieves what it is so determined and so well equipped to achieve, it will be a force of nature, liberating the genius of children who will then have a reverberating impact of their own on the world around them, inspiring emulation that then produces new waves of reverberating, self-amplifying success.

The Generation School model is a complete revamping of the structure of schools, not an attempt to reform education by some shallow panacea that appeals to those who live in a linear and oversimplistic world, but rather restructuring the school itself, and its relationship to families and communities. It restructures the space in which education happens, the way in which education is delivered, the calendar and the schedule, the planning and implementation, all in response to the question “what works?” (See http://westgenerationacademy.dpsk12.org/ for discussion of specific design innovations, and for more information about West Generation Academy.)

But a good model is not enough by itself: Passionate, inspiring leadership is also required; a spirit and energy infused into the project, a zeal and joy and optimism and commitment to turning a vision into a reality. And, rallied by that leadership, recruited and mobilized by it, a team of individuals all similarly invigorated and committed is also necessary. Judging from the presentation I attended a couple of days ago, all of these elements are in place, or are being put into place, by Bob Villarreal at West Generation Academy. Whether the potential that I felt pulsating in that room comes to fruition or not is yet to be seen; but the fact that the potential exists seems to me to be an undeniable reality.

When good things are happening around us, when talented and dedicated people are striving to make a difference, it is incumbent on the rest of us to offer what support we can. We are all in this story together, and all should be striving to work together to write it well. If you live on the West side of Denver, or are just a highly engaged member of the larger community (as I am), consider finding your own place in this exciting and encouraging new endeavor, whether it is as a parent looking for the right school for your child, an excellent teacher looking for the right school in which to work, or a member of the community looking for local initiatives in which to invest your energy and resources. (One small way to show support would be to “like” West Generation Academy’s Facebook page: http://www.facebook.com/pages/West-Generation-Academy/191616214259731)

Too often, those of us who are most politically and publicly engaged look for what’s wrong with the world and bemoan it, driven by anger and frustration, discouraged and disgruntled. But our real power lies in looking for what’s right with the world and nurturing it, cultivating the best sparks of positive change, blowing on them until they blossom into a brilliant blaze. West Generation Academy seems to me to be a glowing ember of great promise. Let’s lend it our own breath, our own inspiration, and help to ignite it into a roaring fire of realized potentials and expanding opportunities.

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My current argument is not one about what the substance of our immigration policy should be (I’ve made such arguments in, e.g.,  A comprehensive overview of the immigration issue, Legality, Morality, and Reality Regarding U.S. Immigration Policy, Godwin’s Law Notwithstanding, Basal Ganglia v. Cerebral Cortex, Basal Ganglia Keeping Score, The Nature of the SB 126 Colorado ASSET Debate, Godwin’s Law, Revisited, and A Humane & Rational People), but rather about what the process for determining our immigration policy should be. As always, this argument is just one instance of the larger argument that we should commit ourselves to striving to apply reason to evidence in service to humanity, rather than engaging in careless habits that result in the application of irrationality to ignorance in service to inhumanity.

The focus of this essay is one clearly fallacious argument, that is, in fact, the principal argument used by those who take a stand unyieldingly hostile to millions of people, of a certain status, who currently reside in this country (and, by implication, millions more who would like to, but have no legal pathway toward doing so). Debunking this one argument does not, by itself, debunk their entire position, but rather merely forces the debate into a more appropriate framework, where any and all substantive arguments they may have can compete with any and all substantive counterarguments, in a process which best serves our better angels by giving our baser demons fewer shadows in which to hide.

The fallacious argument to which I refer is that the current widespread hostility toward undocumented immigrants and residents, in which these particular ideologues actively participate, is not only legally warranted but legally mandated. Their error is their failure to understand that the law, in the final analysis, is our servant, not our master. (Yes, in an intermediate sense the utility of the law is that it is binding and not optional, but it is designed to be a malleable and adaptable tool rather than, in its particulars, a fixed and permanent shackle.)

As an aside, the irony of this error is one thread of a larger hypocrisy: The people who make it are overwhelmingly the same people who insist that they are the most committed to “Liberty,” while in reality being the most committed to authoritarianism. But that is a topic for other essays (see, e.g., The Catastrophic Marriage of Extreme Individualism and Ultra-Nationalism).

The argument frequently invoked by this particular faction, that their hostility is not directed toward immigrants but rather only toward illegal immigrants, and that the word “illegal” conclusively supports their public policy positions on the issues of immigration and residency, reflects a fundamental misconception of the nature of law and the responsibilities of citizenship in a popular sovereignty. They mistakenly believe that a current legal status quo is the definitive refutation of both any public policy arguments that critique it, and any public policy arguments that defend other aspects of the current or proposed legal status quo that they erroneously consider somehow legally prohibited by some presumed inconsistency with the aspects they prefer. In other words, they presume that public policy arguments can’t challenge existing laws that they do like, and, at the same time, can’t defend existing or proposed laws that they don’t like, the latter based on some presumption of a legal prohibition against the existence of any laws which presuppose the violation of other laws. Both of these beliefs are easily debunked, and their mobilization in service to a blindly ideological position easily demonstrated.

Laws are something we make, implement, interpret, modify, and rescind according to processes that are themselves established by law (see The Fractal Geometry of Law (and Government)). They do not define what the conclusion of public policy debates and legal processes should be, but rather what they thus far have been. They obligate, with varying degrees of flexibility, individual behavioral compliance, not collective ideological conformity, rigid administrative enforcement, or perpetual universal legal consistency. The fact that laws do not mandate the latter three is in large measure how they evolve and adapt to changing circumstances, values, and understandings.

The response to an argument that we should, within the constraints and according to the guidelines of our current legal framework, alter or reinterpret or modify our implementation of our legal framework, with the counterargument that we can’t because the current substantive legal status quo is different from what the modified legal status quo would be, is like arguing a century and a half ago that we can’t abolish slavery because the right to own slaves is protected by law (an argument which was, in fact, frequently and persistently made). And to argue that we can’t pass laws short of a comprehensive change of paradigm because it would be an affront to that dominant paradigm is analogous to having maintained that we couldn’t have made the morally laudible step of allowing escaped slaves to attain their freedom in non-slave states because to have done so would have simply encouraged more slaves to escape.

Let me be clear: I am not comparing current anti-undocumented immigrant ideology to slavery. Rather, I am comparing the defense of one set of laws that we recognize in retrospect to have been morally repugnant and well worthy of being changed with the defense of a current set of laws that some (including myself) argue is also morally repugnant and well worthy of being changed, in order to illustrate that the public policy debate should focus on the value of the law rather than on the fact of its existence. A debate can and should be had about whether the current set of immigration and immigration-related laws are ideal or morally repugnant or somewhere in between. The mere fact that that set is the current law is irrelevant to that debate.

(It’s worth noting, however, that there are some similarities: Slaves were considered not to be citizens, a perception codified in law by the Supreme Court’s infamous Dred Scott decision. Abolishing slavery would have admitted this formerly excluded class into national membership. Allowing escaped slaves to attain freedom but not necessarily citizenship in non-slave states would have been analogous to allowing undocumented immigrants to enjoy some of the opportunities afforded citizens and legal residents without being automatically granted that status itself. The 14th Amendment’s establishment of jus soli, the doctrine that anyone born on American soil is an American citizen, was part of the long-unsuccessful attempt to demolish the legacy of slavery, root and branch, and still has implications relevant to immigration policy. Though the differences are greater than the similarities, the fact remains that exclusionary policies that tend to dehumanize those excluded inevitably resemble one another to some degree. See, e.g., Godwin’s Law Notwithstanding.)

It is our responsibility to determine what our laws should be, while also considering how best to implement and enforce the laws that currently are. Those with a zero-tolerance attitude toward undocumented residents, insisting that we are legally required both to in no way accommodate their presence here and to remove them all regardless of the costs (fiscal, economic, social, demographic, and moral), should also, for consistency, insist that every motorist who ever drifts even just one mph over the posted speed limit should be caught and fined regardless of the costs, and that laws which presuppose violations of the speed limit (e.g., prohibiting driving in the passing lane, even at or above the speed limit, on the basis that it obstructs other motorists who might want to pass) are somehow unacceptable (or themselves “illegal”).

Or, to pick a more illuminating example, even though it is illegal to jaywalk, a motorist is still legally obligated to yield to that law-breaker, who is thus protected from some of the negative consequences of his or her infraction by another law accommodating it. (After all, aren’t we just encouraging more people to jaywalk by requiring motorists not to run them over?)

Again, let me be clear: I am not comparing illegal immigration to speeding or jaywalking.  I am, rather, debunking the fallacy that no law can or should exist which presupposes, or even at times accommodates and implicitly “encourages,” the violation of another law. Our laws neither require nor benefit from that kind of rigid consistency: We can, and should, have laws which both prohibit certain activities, and that protect or accommodate those who violate them. Such laws are particularly well advised when the infraction is non-violent and non-predatory, the protection vital to that person’s safety or sustenance, or the accommodation ultimately in the public as well as private interest (such as by giving all residents of the country maximal opportunities to become productive members of society, rather than denying such opportunities and thus increasing the rate of socially, fiscally, and economically costly dependency and predation).

When people oppose, for instance, a law which would allow in-state undocumented high school graduates to attend state universities at in-state tuition rates, with the argument that the current law somehow prohibits the passage of such a law (“what part of ‘illegal’ don’t you understand?!”), they are inventing a legal doctrine that doesn’t exist (a requirement for perfect consistency among all laws), in order to insist on a particularly vindictive and counterproductive policy position.

Our national debate regarding immigration (as with all issues) needs to focus on what set of policies realized through what legal paradigm best serves our national interests and values. Citing the current legal status quo as an argument in that debate is, in reality, an attempt to insulate preferred elements of that status quo against criticism without having to mobilize any rational or informed argument, or address any rational and informed counterarguments, to do so. At the same time, citing one aspect of the current legal status quo (e.g., the laws against entering and being in the country without legal authorization) as an argument against another aspect of the current legal status quo (e.g., administrative policies not to target for removal those who have not committed other crimes) is an attempt to argue in favor of a change in the legal status quo without having to mobilize any rational or informed argument in support of such a change.

These are not just irrational and, to put it politely, “information-disregarding” arguments in our national debate on immigration policy, but are also instances of a larger contest in American political discourse: The contest between, on the one hand, a commitment to reason applied to evidence in service to humanity, and, on the other, a commitment to irrationality applied to a disregard of the evidence in sevice to inhumanity. It is a contest which those of us who champion the former must win both issue-by-issue, and in more profound ways as well, transcending the individual issues, reaching into the heart of our collective consciousness, transforming with the spirits of reason and goodwill the memes and emes of our own persistent inhumanity.

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